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94–348 PDF 2015

ENSURING GOVERNMENT TRANSPARENCY 

THROUGH FOIA REFORM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

GOVERNMENT OPERATIONS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 27, 2015 

Serial No. 114–10 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 
(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DeSAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

SEAN MCLAUGHLIN, Staff Director 

DAVID RAPALLO, Minority Staff Director 
(III) 

SUBCOMMITTEE ON GOVERNMENT OPERATIONS

MARK MEADOWS, North Carolina, Chairman 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan, Vice Chair 

TREY GOWDY, South Carolina 

THOMAS MASSEY, Kentucky 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

GERALD E. CONNOLLY, Virginia, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STACEY E. PLASKETT, Virgin Islands 

STEPHEN F. LYNCH, Massachusetts 

Jeffrey Post, Deputy Staff Director 

Katy Rother, Counsel 

Sarah Vance, Clerk 

(V) 

C O N T E N T S 

Page 

Hearing held on February 27, 2015 ....................................................................... 1 

WITNESSES 

Ms. Miriam Nisbet, Former Director, Office of Government Information Services, National Archives and Records Administration 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 6 

Mr. Frederick J. Sadler, Former FOIA Officer, Food and Drug Administration 

Oral Statement ................................................................................................. 11 

Written Statement ............................................................................................ 14 

Mr. Rick Blum, Director, Sunshine in Government Initiative 

Oral Statement ................................................................................................. 25 

Written Statement ............................................................................................ 27 

(1) 

ENSURING GOVERNMENT TRANSPARENCY 

THROUGH FOIA REFORM 

Friday, February 27, 2015 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON GOVERNMENT OPERATIONS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC. 

The subcommittee met, pursuant to notice, at 9:03 a.m., in room 

2154, Rayburn House Office Building, Hon. Mark Meadows (chairman of the subcommittee) presiding. 

Present: Representatives Meadows, Jordan, Walberg, Massie, 

Mulvaney, Carter, Grothman, Connolly, Maloney, Lynch, and 

Cummings. 

Mr. MEADOWS. Good morning. The Subcommittee on Government 

Operations will come to order. And, without objection, the chair is 

authorized to declare a recess at any time. 

Transparency is the lifeblood of democracy, and if a government 

is truly of the people, by the people, and for the people, the American people need to know what our government is doing on their 

behalf. Transparency also gives our citizens the opportunity to 

make informed decisions, to hold accountable those in government 

that will abuse or perhaps mismanage the public resources. 

It is those hardworking American taxpayers that really fund everything that we do. And so we need to keep them in mind. And 

this particular hearing is really to examine the Freedom of Information Act, the tool that it provides, obviously dating back to 1966, 

when it was originally put in place as a foundational transparency 

law. 

And as we have seen it come into practice, those presumptions 

of allowing Federal records to be accessible to the public is a critical component. Americans really have the desire and the need to 

know. They are looking into the age of the Internet as we start to 

see information that is coming out. It is critical that that information from our government gets placed in the hands of the American 

taxpayers. Obviously, sensitive information is something that we 

need to protect and do that. 

But under this particular law, what we have seen over and over 

again is a lack of compliance, a lack of transparency. And, unfortunately, when that happens, a lack of trust follows it. And what this 

is all about is looking at reforms. The ranking member and I both 

agree that, in order to restore trust, you have to have that transparency. 

With that said, though, there are over 700,000 requests that get 

made of the Federal Government each and every year. And so some 
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of those requests can be very laborious. So what we are looking for 

from our witnesses are to look at how do we streamline the process, 

how do we make sure that the American people get what they 

need, that the Federal Government responds accordingly, and that 

we put in place a system that truly works. And so we are very 

thankful for our witnesses that are here today. 

Chairman Issa and Ranking Member Cummings addressed some 

of this in a bill last Congress. And, indeed, they have introduced 

a similar bill this year, which is H.R. 653, which is the FOIA Oversight and Implementation Act. That particular bill addresses a 

number of concerns. 

But what I am interested to hear from our witnesses today is: 

Does it go far enough? What do we need to do? What are some 

other areas that the perhaps the ranking member and I can work 

on in a bipartisan way to make sure that the American people are 

informed? 

I thank you. 

Mr. MEADOWS. And, with that, I would recognize the ranking 

member for his opening Statement. 

Mr. CONNOLLY. Thank you, Mr. Chairman. And thank you for 

holding this hearing. 

Welcome, to our panelists. 

I do want to begin, like you, in acknowledging both Darrell Issa 

and Elijah Cummings for reintroducing the FOIA Act, H.R. 653. As 

a co-sponsor of that bill, I am pleased we are highlighting the issue 

so early in this Congress, although we see just how much press interest there is in this very sexy subject. 

But it is an important subject. It may not be headline-grabbing, 

but it is how citizens can access their government. It is how we 

hold people accountable. I was in local government for 14 years in 

the Commonwealth of Virginia. 

We have very strict FOIA laws in Virginia. And the local government had very limited timelines to respond to requests, and we 

took it very seriously. And I hope that same spirit will ultimately 

imbue the Federal Government as well, Mr. Chairman. 

This bill would reform a cornerstone of open government law and 

improve access to government records. One of the important reforms would be to require a single Website for FOIA to submit requests to any agency. I think this provision is important because 

it will allow the government to use technology to improve the FOIA 

process both for requests and for the responding agencies. 

The bill requires the director of OMB, in consultation with the 

Attorney General, to ensure the operation of a consolidated on-line 

request portal. Some agencies, including EPA and GSA, have already been working on such a portal. 

Agencies would also be required to post on-line all releasable information that has been requested three or more times and to review their systems of records and post releasable information online if it is likely to be in the public interest. 

Another key provision of this bill would be to require that agencies notify requesters of their rights to seek assistance from the 

agency for a public liaison and the Office of Government Information Services. FOIA litigation can be costly and time-consuming. 
3 

By emphasizing this right, the bill would encourage requesters to 

utilize dispute resolution and mediation services as a meaningful 

alternative to litigation. The bill would require the Government Accountability Office to catalogue the number of statutory exemptions 

under (b)(3) and agency use of such exemptions. 

Individual statutory exemptions are often slipped into legislation 

without consultation with this committee. We don’t even know how 

many exemptions are on the books. Requiring GAO to catalogue 

those exemptions will help us identify outdated or inappropriate 

exemptions. 

I look forward to hearing from all of our witnesses today. I especially want to make note we have a former FOIA officer testifying 

with us this morning. In his written testimony, Mr. Sadler States 

that many FOIA officers feel that their voices have not been heard. 

That is a valid point. 

We have conducted FOIA hearings in the past, but the previous 

witness panels were mostly composed of open government interest 

groups and high-level agency officials or political appointees. I commend the work that both of these important groups do. 

However, I also look forward to hearing the perspective of someone who had to perform ground-level implementation of FOIA. Mr. 

Sadler has more than 40 years of hands-on experience with FOIA 

that spans from FOIA denials and appeals to directing FOIA staff 

at the FDA in their efforts to reduce overall FDA backlogs of pending agency FOIA requests by 91 percent over a 5-year period. 

Congratulations, Mr. Sadler. Thank you for your service. 

I also want to thank Miriam Nisbet for being here today. She has 

served in government for over 35 years, though she doesn’t look it, 

and is largely responsible for the outstanding reputation of the Office of Government Information Services. 

Rick Blum, I don’t want to leave you out either because your 

work with Sunshine in Government has helped give voice to the 

concerns of reporters, citizens, and other FOIA requesters. Thank 

you for your diligence and your keeping us accountable to the people we serve. 

Thank you, Mr. Chairman. 

Mr. MEADOWS. I thank the ranking member for his Statement 

and, obviously, for his well-prepared opening Statement. 

And I would agree with him. As we start to look at this information, it is critical that, regardless of the fact that there are not a 

number of reporters and cameras here, there is probably no component of transparency that is more critical to the American people 

than FOIA transparency. 

And so your testimony—not only will it be constructive and helpful, but it will be vital in terms of restoring the trust in our government that so many Americans want to have. So thank you. 

I will hold the record open for 5 legislative days for any members 

who would like to submit a written Statement. 

We will now recognize our panel of witnesses. 

And I am pleased to welcome Ms. Miriam Nisbet, former Director 

of the Office of Government Information Services at the National 

Archives and Records Administration—welcome—Mr. Frederick 

Sadler, former FOIA officer at the Food and Drug Administration; 
4 

and Mr. Rick Blum, Director of the Sunshine in Government Initiative. Welcome to you all. 

And pursuant to committee rules, all witnesses will be sworn in 

before they testify. So if you would please rise. If you would raise 

your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Let the record reflect that all witnesses have answered in the affirmative. 

Please, you may take your seat. 

So in order to allow time for discussion, you will be giving your 

testimony. I would ask that your oral testimony be limited to 5 

minutes, if you can. Your entire written Statement, however, will 

be made part of the record, and we have that. 

And so we will first recognize you, Ms. Nisbet, for your 5-minute 

oral testimony. 

WITNESS STATEMENTS 

STATEMENT OF MIRIAM NISBET 

Ms. NISBET. Thank you. And good morning, Mr. Chairman, ranking member Mr. Connolly, and members of the subcommittee. 

I am Miriam Nisbet, founding Director of the Office of Government Information Services at the National Archives and Records 

Administration. I was privileged to serve in that position from September 2009, when the office opened its doors, until I retired a few 

months ago, at the end of November 2014. 

Today I speak as a private citizen who, like you, cares deeply 

about the right of my fellow Americans to access government information. I appreciate the opportunity to talk with you about the 

FOIA Oversight and Implementation Act of 2015. The bill covers 

a lot of ground; so, I will focus my comments on those portions of 

H.R. 653 that pertain to the Office of Government Information 

Services, usually referred to as OGIS or the FOIA ombudsman. 

In its first 5 years, the dedicated staff of seven put into action 

the few words that direct its two-pronged statutory mission: Providing mediation services to resolve FOIA disputes and reviewing 

agency policies, procedures, and compliance. By any measure, it 

has been a success. 

Why, then, does H.R. 653 have numerous provisions that directly 

affect OGIS? The co-sponsors of this bill, as you have already mentioned, and the one passed unanimously by the House in the last 

session has Stated that the purposes include strengthening the 

FOIA ombudsman’s office and increasing its independence and bolstering the use of dispute resolution in the FOIA process. 

How would it do that? First, the bill more clearly spells out the 

responsibility and authority of OGIS to review agency FOIA compliance, to identify ways to improve compliance, and to report 

broadly on its findings. The changes also would affirm the role of 

OGIS as a key component in the FOIA ecosystem, as Congress envisioned. 

Second, the bill would go a long way to making dispute resolutions an integral part of the FOIA process. Among the critical 
5 

changes are that agencies would be required to notify a requester 

that, while he or she may go to court if dissatisfied with the agency’s decision, the requester also has the right to turn to the internal FOIA public liaison and to OGIS. Dispute resolution can conserve scarce resources and it can head off costly and time-consuming lawsuits. Moreover, the availability of dispute resolution at 

all stages of the FOIA process is just good customer service. 

Third, the revisions would guarantee independence of the ombudsman’s office. Congress wisely placed OGIS in the National Archives, an agency whose primary mission is to provide access to 

government information and which does that very well. Nonetheless, under the law now, OGIS is not an independent watchdog or 

overseer, as I have heard it described. OGIS is a component of the 

executive branch and must send its proposed recommendations 

through the intra-and interagency review process that all agencies 

must follow, unless there is a specific exception by law. 

If you want recommendations, reports, and testimony that have 

not had to be reviewed, changed, and approved by the very agencies that might be affected, then you should change the law. That 

doesn’t mean that OGIS wants to or will be the FOIA police. That 

role is simply not compatible with the neutral, impartial mediator 

who brings parties together voluntarily to resolve their differences. 

However, the authority to report directly to Congress, as H.R. 

653 provides, would be an important reform for an office that hears 

complaints, resolves disputes, reviews compliance, and is expected 

to speak truth to power. I might add that, if I were still the Director, I could not say this. 

The FOIA ombudsman has demonstrated that it can build strong 

bridges that make the Freedom of Information Act work more 

smoothly and move us away from such an adversarial environment. 

OGIS can take on the additional responsibilities envisioned by H.R. 

653, and I hope it will be given the resources to serve both the general public and the Federal agencies even more effectively. 

Thank you. I look forward to answering your questions. 

Mr. MEADOWS. Thank you, Ms. Nisbet. 

[Prepared Statement of Ms. Nisbet follows:] 
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Mr. MEADOWS. And the ranking member and I will certainly 

have some followup. We were whispering, asking some questions, 

as you had that. 

So the chair would now recognize Mr. Sadler for 5 minutes. 

STATEMENT OF FREDERICK J. SADLER 

Mr. SADLER. Good morning, Chairman Meadows, Representative 

Connolly, members of the subcommittee. 

It is both a pleasure and a privilege to have been invited to join 

you this morning to discuss the FOIA program in the Federal Government. And, in particular, Representative Connolly, I appreciate 

your kind thoughts. 

I would like to note at the outset that my testimony solely reflects my own opinion and is not necessarily that of the department 

or the agency in which I so proudly served for more than 40 years. 

In the interest of time, I think I need to focus comments on just 

a few of the aspects of the draft which—— 

Mr. MEADOWS. Mr. Sadler, could I just ask you to pull that mic 

up a little bit closer. Thank you. 

Mr. SADLER. I am sorry. I was not sure how far it—is that OK? 

In the interest of time, I think I need to focus my comments on 

a few aspects of the draft which are, in my view, the most problematic. 

With regard to the foreseeable harm test, if I understand it correctly, the foreseeable harm test would not be applied to those exemptions which are mandatory withholding, such as national security or trade secrets. However, this means, then, that the foreseeable harm test would apply to even those exemptions which have 

a minimal discretionary component. I think that, as proposed, this 

has the potential to unintentionally delay the responses issued by 

Federal Government, increase backlogs, and almost inevitably result in increased disclosure-based litigation. 

First, in my opinion, Exemption 2 and Exemption 7 should be exempted from the foreseeable harm test. I believe the statutes themselves in court decisions have subjected those exemptions to the position which basically eliminates the need for foreseeable harm. 

That would then focus the foreseeable harm test solely on Exemption 5, which appears to be the real area of concern in the requester community. I think it would be beneficial to both public 

and private sectors to require a breakout of Exemption 5 similar 

to what we do in Exemption 7. 7 has six parts, and you must identify the exemption at the site of every redaction. 

If you use Exemption 7—I have to say 7(a), 7(b) and 7(c)—we 

could do the same thing with Exemption 5 and separate out those 

areas which are of minimal concern to the requester community. 

5(a), for example, could be deliberative in process, a predecisional 

process. 5(b) could be attorney-client communication. And 5(c) could 

be attorney work product. In my experience, general counsel 

records are rarely at issue in concerns. 

Portion-marking would be new. It would require reprogramming 

agency internal working and tracking systems and could not be im-
12 

plemented immediately, but it would be both workable, measurable, and enforceable. However, this raises another issue. 

If a foreseeable harm analysis would have to be in writing, it creates a record which would, by definition, be releasable under the 

Freedom of Information Act. And since these are dealing with deliberative matters, by definition, these will probably contain information about pending regulatory issues, public health issues, national security, foreign policy, and trade secrets. And so, if a written analysis were to be required and then subject to release, there 

is every expectation that the analysis could not be released in its 

entirety. 

That raises another concern, that the requester community will 

not have full access to the deliberation and, therefore, will initiate 

litigation based solely on a discrepancy of interpretation or a need 

for additional information. 

Second, the posting of frequently requested records or, indeed, all 

records requested under the FOIA, as has been proposed in some 

aspects of the media, is probably the single-most problematic component to implement. There is a fundamental conflict between the 

FOIA expectation or statutory mandate, if this were enacted, and 

the Americans with Disabilities Act. 

The Americans with Disabilities Act has a requirement within it 

that requires that all records on Federal agencies be audibly read 

to those individuals who have visual handicaps. That means that 

the records must be in a specific software program which would enable this. And most Federal agencies are creating records in that 

manner, but submitted records or records otherwise obtained are 

not. 

The conversion, which can be done, is called remediation. Remediation is extremely time-consuming and can be extremely expensive. And there is no software program on the market with the capability of remediating records to the extent that a FOIA officer 

would not have to re-review the document in its entirety line by 

line, word by word. 

I would suggest that the fee structure is unnecessarily complicated and that the basis for this lies in the statute and it needs 

to be reviewed it its entirety. If there are issues relating to the 

granting of fee waivers for media, public interest groups, or nonprofits, it seems entirely appropriate to address those issues, but 

still to review the overall fee schedule. 

And then I believe efforts need to be considered which would reduce the impact of disclosure-based litigation. Clearly the establishment of public liaisons in OGIS have been steps in that direction. 

I have had the pleasure of knowing Ms. Nisbet for an extended 

time, and I have worked with her closely over the past decade. And 

I would commend her efforts and those of her staff, but there are 

insufficient incentives for a requester to participate in the mediation process and all too often they jump directly to litigation. 

With regard to having all Federal agencies update their regulations, 180 days, as Stated, is simply insufficient. Double or even 

triple that amount of time may not be sufficient, depending on the 

extent of the regulations and the complexity of the records with 

which the agency deals. 
13 

I would suggest that Congress consider amending the language 

within the statute which is being interpreted as constraining or 

even preventing Justice Department revision of administrative portions of the FOIA regulations governmentwide. 

If DOJ had the authority to revise the administrative components of FOIA regulations, the process could be undertaken once. 

As it is proposed, 99 Federal agencies, all of whom are subject to 

FOIA, will have to go through the process of updating their regulations. 

The issue of creating a single governmentwide portal for submission of a request is very interesting, but it is replete with concerns 

because this is not well defined. 

In the interest of time, I will make one last comment and then 

defer to the committee and the panel. 

I would strongly support the creation of a FOIA Council, although I would suggest that the chief FOIA officer is not necessarily in the best position to understand the complexities of the 

statute. Since, by definition, this is an adjunct duty, you might 

want to consider making it the most knowledgeable individual at 

the highest level. 

I appreciate the opportunity to join you today, and I look forward 

to answering any questions. Thank you. 

Mr. MEADOWS. Thank you, Mr. Sadler. 

[Prepared Statement of Mr. Sadler follows:] 
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Mr. MEADOWS. The chair recognizes Mr. Blum for 5 minutes. 

STATEMENT OF RICK BLUM 

Mr. BLUM. Thank you, Mr. Chairman, Ranking Member 

Connolly, and members of the subcommittee. Thank you for the opportunity to testify today. 

I am Rick Blum, and I represent the Sunshine in Government 

Initiative, which is a coalition of media associations promoting open 

government. And I can assure you at conferences and discussions 

among journalists, this hearing today and your work on improving 

FOIA is of great interest to journalists. 

Mr. Chairman, we appreciate your attention early this Congress 

to strengthening FOIA, and we hope Congress will enact the 

strongest possible reforms soon. I would like to use this time to 

briefly highlight a few points. 

FOIA remains a powerful tool for the public to learn about matters of public interest. However, journalists and other requesters 

continue to be frustrated that the process involves long delays and 

avoidable procedural obstacles. 

The FOIA legislation addresses these problems with several 

steps that are very productive, such as strengthening OGIS, all digital processing and tracking, and reining in the secrecy statutes 

under Exemption (3) that you mentioned, Mr. Chairman. And those 

laws create anti-disclosure loopholes in the law. 

First, despite frustrations, FOIA does remain an important tool 

to document sometimes uncomfortable facts. Armored vests designed to stop bullets failed the military’s own ballistics tests, but 

were sent to soldiers in harm’s way anyway. Faced with a reporter 

who used FOIA to obtain the test results, the military quickly recalled over 5,000 vests. 

And for the Associated Press, a member of our coalition, FOIA 

helped reveal that local law enforcement in Ferguson, Missouri, set 

up a no-fly zone around the protest last summer not for safety reasons, but to limit media coverage. 

At the same time, FOIA remains for many journalists a frustrating and broken system. The long waits, avoidable obstacles, 

and many redactions too often allow agencies to put secrecy before 

disclosure. One reporter even told me that his initial request for 

records was denied and his appeal was handled by the very same 

office that denied the request. That should never happen, especially 

with OGIS. 

The FOIA reform bill now before Congress takes important steps 

to address these problems, and I would like to highlight them now 

that are of particular importance to our community. 

First, Congress should clarify it intends OGIS to speak with an 

independent, assertive voice. We actively supported the creation of 

OGIS and support its work today. We even gave an award to the 

retired Director for her work. 

Nonetheless, many news organizations and reporters have 

stopped taking more serious substantive disputes to OGIS. OGIS 

has for 5 years ably handled disputes involving miscommunications 

and procedural problems and other disputes while identifying common problems and commonsense solutions. 
26 

OGIS is now positioned to push agencies assertively as appropriate when they refuse to talk or wrongly deny a request. By requiring OGIS to report specifically on its advisory opinions, the bill 

emphasizes that written opinions from OGIS are an important way 

OGIS can help correct and prevent agency misdeeds. 

In addition, before making its recommendations public, as former 

Director Nisbet testified, OGIS must get input from other agencies 

and clearance from the Office of Management and Budget. These 

reviews limit what OGIS can say, delay its recommendations, undermine learning from past disputes, and should be eliminated. To 

be effective, OGIS requires an independent voice. 

Next, better electronic tools to manage requests and responses 

should help agencies and requesters alike. While it would be fun 

to see a drone deliver documents sometime soon, a good digital system that meaningfully manages FOIA’s logistics for both requesters 

and agencies would be a great next step. 

In fact, such a system, FOIAonline, is in use by about 11 agencies, and Ms. Nisbet guided its development. The bill’s call for a 

FOIA portal and standards for intraoperability help move more 

agencies into these kinds of systems that talk to one another and 

avoid paper processing. And that is very, very helpful. 

Finally, I want to say a word about the secrecy statutes under 

Exemption (3) that you mentioned, Mr. Chairman. They come up 

way too often in legislation. As you mentioned, the government 

doesn’t have a good count. By our count, we found about 250 to 

maybe well over 300, depending on how you count them. And, more 

troubling, we play Whack-A-Mole, locating and finding these unnecessary, unjustified and, at times, overbroad proposals. And this 

committee has done a great deal of work successfully in knocking 

these down. 

They deal with satellites tracking space junk, reforms of the financial system, and plans for high-speed rail, to name a few. And 

so we appreciate your work on these Exemption (3) statutes and 

look forward to continuing to bring these to light. 

In conclusion, Mr. Chairman, H.R. 653 and its counterpart bill 

in the Senate include many bipartisan improvements, and we look 

forward to celebrating its quick enactment. Again, we appreciate 

the opportunity to testify, and I look forward to answering your 

questions. 

Mr. MEADOWS. Thank you, Mr. Blum. 

[Prepared Statement of Mr. Blum follows:] 
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Mr. MEADOWS. Thank each of you for your testimony. 

The chair is going to recognize first the gentleman from Kentucky, Mr. Massie. 

Mr. MASSIE. Thank you, Mr. Chairman. 

Ms. Nisbet, could you give us an example—a hypothetical is OK, 

but a real example would be better—of how OGIS is supposed to 

work and then give us an example of ways that it hasn’t been able 

to function in the way Congress intended, like with a Freedom of 

Information request, a specific one. 

Ms. NISBET. Well, as you know, OGIS does have a two-pronged 

mission. One is providing mediation services to resolve FOIA disputes. And that is something I would refer you to the annual reports that OGIS has made available that details its work. 

By the end of Fiscal Year 2014, it had assisted in something like 

3,500 FOIA-related matters. And that spans very simple matters, 

from people coming to OGIS because they don’t know where to 

make a request or how to make a request, to much more complex 

matters that involve real mediation, you know, more what you 

would think of as mediation between the parties, in order to head 

off litigation. 

Mr. MASSIE. So you’ve had 3,000 successes. But what is an example of where you have been stymied? And I really appreciate you 

coming here today as a citizen and appreciate the fact that you 

wouldn’t be able to say some of this if you were still there. So give 

us an example of what you can tell us today that you couldn’t have 

told us. 

Ms. NISBET. Well, the other part of the mission is reviewing 

agencies’ policies, procedures, compliance, and making policy recommendations to Congress and the President on ways to improve 

FOIA. And that is a process, as I mentioned in my oral and written 

testimony, that did run into problems in that OGIS is part of an 

executive branch agency. 

Agencies do have to go through an intra-and interagency review 

process. In order to make recommendations, particularly legislative 

recommendations, those have to be approved through the process, 

including through the Office of Management and Budget. And I can 

tell you that, in a number of instances, that was a rather arduous 

process. 

Mr. MASSIE. Do you feel that this legislation can make that less 

arduous? 

Ms. NISBET. Certainly I do. Because the way the bill is written 

right now would make it quite clear that recommendations, reports, 

and testimony will be communicated directly to Congress without 

having to go through those reviews. 

And that, Representative Massie, doesn’t mean that OGIS would 

not be regularly conferring and talking with all the different agencies that it works with every day and being sure to include in any 

recommendations that it makes the concerns of the agencies. It is 

not that. It is that those agencies would not be reviewing, approving, and possibly changing those recommendations before Congress 

sees it. 

Mr. MASSIE. It certainly defeats the purpose of OGIS if it all has 

to be filtered in that way before it comes back to Congress, doesn’t 

it, as an independent? 
36 

Ms. NISBET. You said that perfectly. 

Mr. MASSIE. Thank you very much. 

Mr. Blum, could you give us some specific examples. I know you 

alluded to a few where you have been stymied or where OGIS was 

stymied in its ability to help you or the media come to a resolution 

on a FOIA request. I like hearing the specifics. 

Mr. BLUM. Specifics, yes. I mean, very much so. I can tell you 

that—you know, I guess really a great example of where FOIA 

wasn’t really working well and where we would like to see—you 

know, OGIS could have a role in speaking a little bit more forcefully and knocking things down are—you may remember the ‘‘Miracle on the Hudson’’ landing when the airplane was hit. 

Mr. MASSIE. Sure do. 

Mr. BLUM. There was a bird strike and the airplane had to make 

that just amazing landing. Well, in the days and weeks after that 

landing, reporters wanted to know from the FAA, ‘‘How often does 

this happen? Is this a persistent problem or was this just kind of 

a one-in-a-million kind of thing?’’ 

And the FAA initially said, ‘‘Yes. We have information that airports voluntarily share, and we’re going to give that out.’’ And then 

within a few days they reversed themselves and said, ‘‘No. No. No. 

This would affect transportation security. And there is an Exemption (3) statute that allows us to withhold information if disclosure 

might harm the ability of us to secure air safety.’’ 

Well, there was a lot of public attention. Actually, the news 

media did write about that and did write about FOIA and the limitations. And, to their credit, the Transportation Secretary overturned that and released the information while safety experts were 

saying, ‘‘Just mandate reporting. Get all this stuff in.’’ 

I think that is a role where it doesn’t have to get to that level 

and OGIS can say, ‘‘Wait a minute. Do you really mean to say that 

bird strikes on airplanes, if discussed and disclosed, would encourage someone else to create this kind of accident?’’ 

That is just not going to happen. I think that is where you 

have—Ms. Nisbet is correct. We don’t have a FOIA police, but 

OGIS is the closest thing that we have. And we would like some 

rationality and clarity when these kinds of results happen. 

Mr. MASSIE. Thank you. I am particularly interested when public 

safety is the issue at hand. 

Thank you, Mr. Chairman, for yielding to me. I yield back. 

Mr. MEADOWS. I thank the gentleman from Kentucky. 

I now go to the ranking member of the subcommittee which has 

jurisdiction over this particular area, the gentleman from the 11th 

District of Virginia, Mr. Connolly. 

Mr. CONNOLLY. I thank my friend, the chairman. 

And I am going to try to get three questions in, one for each of 

you. So bear with me and try to be concise, and I will, too. 

Exemptions, Mr. Blum. The Constitution does not guarantee access to information. It protects the press, freedom of press, but the 

dialectic is set up, you know, ‘‘Good luck in trying to get access.’’ 

It is really this and other statutes that try to codify that gray 

area in between in terms of, ‘‘What do you have access to? What 

don’t you?’’ It is the natural order of things, I think government 
37 

wanting to protect its information and the press wanting to get at 

it. 

Not always is the press motivation as noble as you suggest. 

Sometimes, actually, their purposes may not necessarily serve the 

purposes of good government. But, generally, we assume they are 

truth-tellers and they are trying to get at the truth. 

Could you list some egregious exemptions currently allowed that 

you think we ought to be addressing in the new authorization. 

Mr. BLUM. Well, you said you had three questions. So I am not 

sure I can do that question justice. 

Look, FOIA does lay out a really good structure to identify what 

information the public should have access to and what interests 

there are to protect that justify withholding. That actually is a very 

good construct, national security, privacy, trade secrets, those kinds 

of things. 

But the question that reporters always ask is, ‘‘Why is it so procedurally difficult? If I am sitting in floodwaters in Katrina and I 

have requested the test results, why can’t I get that quickly?’’ Because the homeowners, my readers, are asking me, ‘‘When can I 

come back to my home?’’ 

Mr. CONNOLLY. So if I am listening to you correctly, it is not just 

about exemptions? It is about streamlining the process as well? 

Mr. BLUM. Absolutely. It is exemptions and streamlining the 

process. And I think that is what this bill actually does very well, 

is it does try to address the process. 

Mr. CONNOLLY. Let me invite you, on behalf of myself and the 

chairman, if I can presume—we’d love to see a list, if you want to 

develop it, of exemptions you think we ought to be addressing in 

the law. 

Because there may be things that escape us we hadn’t thought 

about that you’re dealing with, and this is the time to try to do 

that. So if there are egregious exemptions we ought to be addressing, I welcome and I know Mr. Meadows welcomes your giving us 

some guidance in that respect. 

Mr. BLUM. I appreciate that very much. And I will. 

Mr. CONNOLLY. Thank you. 

Mr. BLUM. I will also say just very, very quickly, this bill has 

been discussed and debated for a very long time and, you know, we 

really hope that Congress can move on this and get this thing into 

law. 

Mr. CONNOLLY. Great. Thank you. 

Mr. Sadler, you made a passing reference to problems with the 

sort of digital portal provision in the bill, that, yes, it looks like a 

good idea, but it is going to be fraught with problems, if I heard 

your testimony correctly. 

Could you elaborate just a little bit on that. Because part of our 

concern is we want to bring the government into the 21st century 

with respect to technology, especially with younger generations. 

They expect that it is going to be done digitally, electronically, 

it is not a bunch of paperwork. This was seen, I think, as something that would be a youthful reform, bringing us up to date. So 

your note of caution struck me, and I wonder if you could elaborate. 

Mr. SADLER. I would be happy to, sir. 
38 

When you have nearly three-quarters of a million requests being 

submitted, if they are all going to go through a single portal, we 

are essentially establishing an entire division within an agency. 

This could require a couple of dozen individuals or more to simply 

log and disseminate. 

What is also not clear is whether or not there would be a certain 

amount of oversight, when the log would become public, whether 

or not the requests would be farmed out to the individual agencies 

responsible for replying. 

And then the 20-day time period would start. What happens if 

requests have to go to one agency and there has been a misunderstanding and the request has gone to another agency? At what 

point did the clock begin? 

Hypothetically, if you have a food-related issue and you came to 

my former agency, but the information related to the recall of a 

meat product, it would be misdirected and would have to go over 

to the USDA. So there are going to be issues like that. 

Document size is an issue. Many individuals are using electronic 

systems which are not capable of either transmitting or submitting 

sizable documents. That is an issue. There are situations in which 

individuals request their own records and, in many cases, you need 

an original signature. So there still needs to be some kind of duplication. And in my situation, particularly when you deal with public 

health, there are many instances in which the letter itself cannot 

be made public. 

I find this more often with consumers because they feel that they 

need to justify what they want to ask for and will include medical 

data, Social Security numbers. That happens a great deal with Social Security and Veterans Administration. And the letters can’t be 

made public. 

So there is an issue about when these will be disseminated and 

how that data base then—if it transmits information to the Federal 

Government, how it would feed back to a central repository for 

posting. I am assuming that you would utilize something like 

foia.gov that is based in the U.S. Department of Justice. 

But the concept is laudable. If you want to simplify access for the 

public, how would we go about doing that and what restrictions 

need to be applied? And I am more concerned here than anything 

with protecting individual privacy. It becomes a different issue. 

Mr. CONNOLLY. Thank you. 

My time is up. And if there is the opportunity, I’ll return to Ms. 

Nisbet. You. 

Mr. MEADOWS. I thank the gentleman. 

And the chair recognizes the vice chair of this particular subcommittee, the gentleman from Michigan, Mr. Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman. 

And thanks to the panel for being here. 

Ms. Nisbet, thank you for your service with OGIS and thank you 

for your willingness to be able to share things that, as you said, 

you couldn’t share if you were still in that position with us today. 

Let me ask you, when FOIA disputes come to OGIS for resolution, what’s the result? 

Ms. NISBET. Well, it is varied, depending upon what the dispute 

is. Often the requester—or sometimes it is the agency that comes 
39 

to OGIS—there is simply a lack of communication. There has not 

been good communication or there has been no communication at 

all between the requester and the agency. 

OGIS is that neutral party that can step in and talk to both to 

find out what the concerns are and, essentially, broker an agreement about how long it is going to take or what the fees might be, 

issues like that, or if the case has progressed further, really bring 

the parties together to talk about specific exemptions or where the 

problems lie. 

The result, one, in the best of all circumstances, both the requester and the agency have agreed on a path forward and the 

process is streamlined administratively and, hopefully, litigation is 

averted. 

Certainly that is not always the outcome, but more often than 

not the parties simply having that communication, that conversation, really helps the process. 

Mr. WALBERG. Has there been any significant frequency that information that the agency was reluctant to disclose is now disclosed? 

Ms. NISBET. Well, sometimes that happens, but that is only one 

of many outcomes. The issues may not always be about the information being withheld. It is how the request is being handled, 

questions about fees, the scope of the request, the search for the 

documents. So all kinds of issues. 

Mr. WALBERG. Will the language of H.R. 653 help OGIS get 

through to agencies, I guess the specific concept that, by ‘‘specific 

identifiable harm,’’ you really mean specific? 

Ms. NISBET. Well, the current policy of the government through 

the Attorney General’s memorandum is that agencies are to identify a foreseeable—that they are not to withhold information if they 

have not been able to identify a foreseeable harm. And that is built 

in, of course, to the exemption system. 

Mr. WALBERG. But this bill will help foster that still further, that 

specific means specific? 

Ms. NISBET. It would codify the current policy. 

Mr. WALBERG. Thank you. 

Mr. Blum, FOIA contains nine exemptions that allow agencies to 

withhold records. According to the administration estimates, only 

30 percent of FOIA requests resulted in full disclosure in Fiscal 

Year 2013. This seems low. 

Is it a struggle to get full and unredacted responses from the 

agencies? 

Mr. BLUM. Is it a struggle? Well, it absolutely is a struggle. It 

is also very difficult to know, once you get the documents back and 

you see those blackouts, are they appropriate. 

Thanks to Ms. Maloney, who was very helpful in 2007, agencies 

now have to say which exemption, which statute, they are using in 

blacking that out. 

But with deliberative process, it is very hard to—you know, how 

can you challenge something if you don’t really understand the 

logic behind the redaction and oftentimes you don’t really see it? 

There is an organization in the National Security Archives that 

actually will request something, you know, a couple times and then 

they’ll compare the redactions, and it turns out that the redactions 
40 

don’t match. And so you get the whole document and it raises the 

question what is really—— 

Mr. WALBERG. So persistence pays off at that point. 

Along that line, Mr. Blum, on the President’s first full day in office, he issued a memo on FOIA, urging agencies to adopt a presumption of disclosure. Attorney General Holder reaffirmed the 

President’s promise for openness. 

Has the administration lived up to this commitment? 

Mr. BLUM. I think the administration has worked very hard to 

live up to the commitment. They have devoted a lot of hours, holding a lot of meetings with agencies, saying, ‘‘What are you doing 

about transparency? And what can you do in setting benchmarks?’’ 

They sent back all the reduction goals. FOIA is just a very, very 

difficult process. And so, once it gets filtered down and the procedural obstacles, as I was mentioning, you know, get filtered down 

to really what reporters are experiencing and other requesters are 

experiencing, it is very difficult to see the changes come to life. 

So that is why we think that it is very appropriate for Congress 

to try to streamline the process, to try to make the procedures 

work better, so at least you’re taking out all those process battles 

that reporters talk about, you know, ‘‘Oh, I finally got them to 

change my address. So I am actually getting the request to the 

right place eventually,’’ you know, ‘‘I am getting an estimated completion date.’’ 

You shouldn’t need that. You should be able to look at the statistics and say, ‘‘OK. For a request like mine, it takes the FDA 60 

days to do this. It will take them 15 days to do that,’’ and I’ll call 

them back and I’ll keep tabs on my request. 

So I think the procedural fixes in the bill just are real common 

sense, and I would hope that they would not be perceived as controversial in any way. 

Mr. WALBERG. Great. Thank you. 

I yield back. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentleman from Massachusetts, Mr. 

Lynch. 

Mr. LYNCH. Thank you, Mr. Chairman. 

I think this is your inaugural hearing as chairman. So congratulations. And I think it is a very important topic. 

I want to thank the panelists for helping us out. 

You know, this committee especially—we’re charged with government oversight. And, frankly, the scope of government activity and 

the complexity of that activity and how it affects the American people requires us, really, to rely on the public through FOIA to almost be almost like a million private inspectors general. 

So all these 700,000 requests a year actually amplify what we 

are struggling to do here on the Oversight Committee. So we really 

have a keen interest in making sure that we adopt some of the reforms that you’ve spoken about. 

I think it is very, very important to the public trust. And when 

you get these long delays and sometimes unreasonable obstruction 

by these agencies to very important requests from our citizens, you 

know, that is an attack on democracy in a very real way. 
41 

Mr. Sadler, you talked about in your testimony a very interesting 

issue regarding Section 508 of the Americans with Disabilities Act. 

That provision protects disabled individuals from discrimination 

when they request information. 

As you explained, Section 508 requires agencies to ensure that 

persons with disabilities have comparable access to data as persons 

without disabilities. This means that a record posted on an agency 

Website has to be accessible to blind individuals through text-tospeech software, and you mentioned that we’re simply not there yet 

with some of this software. 

Can you explain the process that the agency is engaged in in trying to make sure that the freedoms and rights within the statute 

are actually being met or at least we’re working toward that point. 

Mr. SADLER. It is a difficult and complicated question to answer. 

So I am going to try and keep my responses short because I think 

that you have honed in on a particular concern. 

If the FOIA at the moment for posting is a policy and the ADA 

is a law and the FOIA officer has to choose because of resource 

issues which to meet, they will meet the requirements of the law. 

If the FOIA requirement for posting frequently requested records 

or more were to become law and there is no increase in resources, 

the FOIA officer will have to choose which statute to violate. 

I can give you numerous examples. But when you think about it, 

remediation does not work for anything that is handwritten, foreign languages, computations, graphs, charts, and photographs. So 

when we look at the concept, it is problematic from a conversion 

standpoint. 

I’ll give you two examples, neither of which are intended to be 

flippant, but may be perceived as such. So if that is the way that 

it comes across, I will apologize up front. 

We had a document that was a quarter of a million pages that 

was required to be made public. We did not have the resources internally to ensure that that document was posted and made publicly available in a 508-compliant manner within 20 days and went 

to try and contract it out. 

The remediation costs, low bid, was $90,000 for a single document. This is not a sustainable cost level, given the volume of what 

we are handling. 

The other problem is remediation will pick up every little nit and 

unclear line as part of its optical character recognition. An ‘‘A’’ becomes an ‘‘E.’’ An ‘‘I’’ becomes an ‘‘L.’’ And, therefore, it is rendered 

illegible and unusable by the visually handicapped. 

Again, not to be flippant, but we issued a letter to a food company for distributing PowerBars, a breakfast bar kind of thing, 

which did not include specific ingredients that were required to be 

included by law, specifically, ingredients that were allergy-inducing. And in this case the firm did not put peanuts on the product 

labeling. 

The letter of admonition came to my office for posting. It came 

to us in Word. At that time, it could not be remediated easily. So 

we went through the process and posted the letter. 

Unfortunately, the phrase ‘‘allergy-inducing ingredient’’ was 

mistranslated by the optical scanner as ‘‘orgy-inducing ingredient,’’ 

which was publicity that the firm couldn’t buy. Everything had to 
42 

come down immediately, and all of the documents had to be reread 

line by line, word by word, to ensure that they are appropriately 

remediated. 

The alternative is to obtain a temporary waiver to post 

unremediated documents. We have done this on numerous occasions. But on day 21, the document must either be remediated or 

removed. 

We have had three separate lawsuits unrelated for 22,000 pages 

of pacemaker materials where the pacemaker lead deteriorated in 

place between the pacemaker and the attachment to the ventricle. 

The documents were requested. Litigation ensued in all three 

cases on day 21, and we agreed to post the documents free of 

charge on a rolling basis. But on day 21, everything had to come 

down. 

We can redact the document electronically and burn it to a CD. 

I can keep that in a public reading room, and I can continue to provide that to a requester with a 24-hour turnaround. What I 

couldn’t do is leave it on-line. 

Mr. LYNCH. Yes. I understand. 

Well, we are certainly open and eager to make sure that handicapped individuals have access to this. I guess it is the aspiration 

of the legislation. That is our goal. And we need to figure out—like 

you say, it could be a question of resources in some cases, but we 

have to make sure that we follow the letter of the law and make 

progress so that handicapped individuals have this right. 

And I thank you. You are very articulate in your response. I appreciate it. 

And I yield back. Thank you, Mr. Chairman. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the gentleman from South Carolina, Mr. 

Mulvaney. 

Mr. MULVANEY. Mr. Sadler, let’s stay on that topic because I 

picked that up during your initial testimony and I want to followup 

on some of the things Mr. Lynch was asking you about. 

Mr. MULVANEY. So are you telling us that every single document 

that comes into your office has to be remediated at some point? 

Mr. SADLER. Yes, sir. 

Mr. MULVANEY. And that every single document then needs to 

be—— 

Mr. SADLER. When it’s posted. 

Mr. MULVANEY. OK. When it’s posted. 

—has to be checked? So someone has to sit and listen to the remediation while they are looking at the document to make sure the 

remediation is accurate? 

Mr. SADLER. You wouldn’t necessarily have to listen to it, but you 

would have to go back and read it to ensure that the remediation 

correctly interpreted the characters that are on the page. As I say 

that, mathematical computations, photographs, foreign languages, 

handwritten comments—— 

Mr. MULVANEY. I’m not trying to be difficult. 

But you would have to listen to it and read it at the same time, 

wouldn’t you, to make sure that it has been remediated accurately? 

Mr. SADLER. If it is remediated correctly, it would be read correctly. 
43 

Mr. MULVANEY. OK. I’m sorry. 

So someone actually reads it out loud? I thought you said before 

there was a software that does this. 

Mr. SADLER. If you’re a visually handicapped individual, you 

need to be able to sit at your computer in your place of work or 

your home and access any Federal Government Website, look at a 

particular document, hit it, and then your software will read that 

document back to someone who is visually handicapped. That’s the 

purpose of 508. I’m not sure if that answers your question. 

Mr. MULVANEY. Do you have any idea what you spend on this? 

Mr. SADLER. Not a clue. A great deal of it is done internally. The 

shorter documents are done that way. And at this point, because 

the Attorney General’s Office at DOJ has been monitoring this, beginning in 2007, they did a governmentwide survey and requested 

a schedule for full remediation, and I have seen Department of Justice, Office of the Attorney General, instructions on continued remediation practice in 2011. 

Most government documents are being created in a remediated 

manner. So what we are talking about under FOIA are submitted 

documents or records that were otherwise obtained by a Federal 

agency and then redacted and posted. 

So a change in this to permit posting of unremediated documents, by definition, in my opinion, does not need to include anything authored by the government. 

Mr. MULVANEY. What percentage of the FOIA requests that you 

deal with are from folks who are visually handicapped and need to 

have the documents in an audio fashion? 

Mr. SADLER. That is not tracked. And we had a caveat on the 

Website that, if there was a problem, that they should call the public liaison, which was me, and ask for assistance, and we said that 

we would make that available. I never received a phone call in 40 

years. 

Mr. MULVANEY. Mr. Lynch, if I banter into a brief colloquy, what 

I’m trying to get at is there is a better way do this. 

Mr. LYNCH. Right. 

Mr. MULVANEY. Because it sounds like it’s a logistical nightmare. 

It may be a financial burden on the folks who are required—it almost sounds like it would be cheaper to have somebody read it out 

loud to them, actually hire somebody to simply read it to them 

than to have all the documents available in that particular fashion. 

Mr. LYNCH. Right. 

Mr. MULVANEY. So that is what I’m trying to get to. I would be 

curious—I may well followup with you after the hearing as to 

whether or not—well, I’ll ask you now, since I have some time. 

Do you have suggestions on how to fix this and make it easier, 

still meet the goal, which is still provide the document to the folks 

who are disabled, but do so in a fashion that doesn’t cripple your 

ability to deliver information? 

Mr. SADLER. In the absence of additional resources or funding 

specifically designated to meet the 508 compliance, I don’t see how 

it can be done because, unless you want to—personal opinion, sir. 

Mr. MULVANEY. OK. 

Mr. SADLER. Unless you want to expand the resources that are 

available to individual IT programs, securities programs, FOIA pro-
44 

grams, even Privacy Act—and proactive posting becomes a nightmare that way—but unless you want to expand the resources, I 

don’t see how they can keep up, unless they divert those scarce resources from another program. 

Mr. MULVANEY. Which will continue to subject you to various 

lawsuits. 

Mr. SADLER. It would, sir. 

Mr. MULVANEY. Thank you. 

I yield back the balance of my time, Mr. Chairman. 

Mr. MEADOWS. I thank the gentleman from South Carolina. 

The chair recognizes the gentlewoman from New York, Ms. 

Maloney. 

Mrs. MALONEY. I thank you, Chairman Meadows. And congratulations on your new appointment. 

And, Congressman Mulvaney, I think you had some good points 

about how we can make government work better. 

I want to very much congratulate Ms. Nisbet on her service to 

government, having served as the very first Director of the Office 

of Government Information Services. Congratulations. 

As you mentioned in your testimony, Ms. Nisbet, OGIS is an office that was established in 2009 to act as the FOIA ombudsman 

by mediating disputes between FOIA requesters and executive 

branch agencies. 

Would strengthening the independence of OGIS also help the 

agency better carry out its mission as a mediator? 

Ms. NISBET. That is a question that I will try to parse through. 

The independence of an ombudsman is usually one of the criteria 

for having an ombudsman because you want an impartial, fair mediator who can convene parties, who can also just hear complaints, 

systemic complaints, for example, or to be able to hear complaints 

that come from the range of agencies as well as requesters, and be 

able to put those pieces together and then to be able to report on 

and make recommendations for how improvements could be made. 

So I believe that the independence issue is helpful both to the review and recommendation portion of the mission as well as to the 

mediation. 

Mrs. MALONEY. And, Mr. Blum, congratulations on your many 

years of service for sunlight in our government. And I really believe 

that organizations such as the Sunshine in Government Initiative 

will take more and more of an important role with the, really, assault on the independence of our newspapers. 

So many of them are facing financial challenges. Many have gone 

out of business. Many are merging. So that strong third wave that 

was able to really research and comment on government with the 

changes in the media are becoming weaker. So, therefore, your position is all the more important in what you are working on. 

Do you think that there is ever a role, Mr. Blum, for OGIS to 

issue advisory opinions? As you know, remediation has not resolved 

the despite. Advisory opinions can be issued. And what is your take 

on that? 

Mr. BLUM. I think it would be very helpful, in fact. I think that, 

in certain circumstances, if an agency is wrong in its interpretation 

of FOIA or for requester questions and feels like they are kind of 
45 

being jerked around, it’s really helpful to get an independent take 

on the situation. 

And that’s what OGIS was intended to do. It doesn’t guarantee 

that newspapers or other requesters get what they want every single time, but provide that independent lens to say either the agency was right or the agency was justified or the agency was wrong 

and they call it out. 

Other bodies that deal with ethical issues in the Federal Government do create advisory opinion as an administrative record to help 

not just requesters, but to help agencies avoid a future dispute. If 

somebody was working for Mr. Sadler or Mr. Sadler himself has a 

question about how to interpret something, as a novel or a complicated request, you know, I think it’s very helpful to have as 

much guidance as possible. 

There are 700,000 requests that come in every year. Surely an 

agency has dealt with the same issue in the past, and maybe someone could write up what happened, what’s a really good commonsense interpretation of that. You know, it would be good to be able 

to refer back to that experience. So I certainly think that would be 

very helpful. 

Mrs. MALONEY. The complaint that I hear from—whether it is individuals of the press is often how long it takes. And I believe that 

you are supposed to respond within 30 days of a request of an 

agency. Is that correct? 

But what happens if the agency doesn’t respond? What recourse 

does an individual or the press have to get this information? 

And oftentimes you’re on deadlines and you may have votes that 

might—information might impact your vote or stories that need to 

be filed. So can any of you—if anyone would like to comment on 

the timeframe. 

I believe it is 30 days you must respond. What happens if you 

can’t respond or they don’t respond? What recourse is there for the 

press or others to get the information? 

Ms. NISBET. We’re fighting over answering your questions, all 

three of us. 

Mr. SADLER. We’re not fighting. We’re debating. 

Mr. MEADOWS. That’s not normally the problem we have here. 

Mr. SADLER. I think we all want a piece of that question. Yes, 

ma’am. 

Ms. NISBET. I think I have resolved the dispute, and the gentlemen are very kindly going to let me answer that real quickly. 

The statute allows 20 working days. So that is working days in 

order to respond. And, really, there are a couple of recourses for a 

requester when the time limit is approaching or has passed. 

Certainly filing an administrative appeal doesn’t help at that 

point. And the statute says a requester can go right to court if the 

statutory time limits have been passed, which is why having an alternative, having the requester be able to go to the FOIA public liaison for assistance in working on the scope of the request, to 

search any kinds of procedural questions, or coming to OGIS—and 

the changes in H.R. 653 would allow a requester to resort to a 

FOIA public liaison and to OGIS in order to avoid having to go to 

court, which I think most of us would agree would be a very, very, 

good alternative. 
46 

Mr. MEADOWS. Thank you so much. 

The chair recognizes the gentleman from Georgia, Mr. Carter. 

Mr. CARTER. Thank you, Mr. Chairman. 

And thank all three of you for being here today. 

I’m going to start off with Mr. Blum and ask you questions. You 

made a couple of interesting comments earlier that I want to expound upon. 

First of all, you talked about Ferguson and about the no-fly zone 

that was imposed there. 

Mr. BLUM. Right. 

Mr. CARTER. You said that it was initially thought to be because 

of one reason, but it turned out to be because they didn’t want the 

media to actually cover the event? 

Mr. BLUM. Right. Federal Freedom of Information Act was really 

critical for The Associated Press to obtain the audio recordings of 

conversations between FAA officials and local officials. 

And I guess the concern, as I understand it, was not with the 

commercial traffic that was in that area, but, really, you can tell 

from the audiotapes that it was they just didn’t want the media 

there. 

Mr. CARTER. And that was a subjective interpretation that you 

made of that? 

Mr. BLUM. Well, I think the reporter had the audio files and was 

able to document that. 

Mr. CARTER. OK. But, still, it was somewhat subjective in the 

sense that he interpreted it as being that was the reason. 

Mr. BLUM. Yes. And I think it goes to a larger point that we all 

want to protect the ability of law enforcement to do their jobs and 

not have disclosure to disrupt that process. 

But there are times when we really do want to make sure that 

law enforcement are doing the right thing. Maybe it was perfectly 

important to have a safety zone and that’s the call, but it has got 

to be for safety reasons. 

Mr. CARTER. OK. And that’s just the point I’m trying to get at, 

is that, you know, it is a fine line. I mean, it is very difficult sometimes to judge that gray matter, if you will. 

Mr. BLUM. I completely agree. 

Mr. CARTER. OK. And then the other point that you made that 

I want to touch on was about the ‘‘Miracle on the Hudson’’ and the 

FAA was slow or hesitant to release the information because of— 

what reason did you say? 

Mr. BLUM. Well, they cited one of these Exemption (3) statutes. 

Exemption (3) of FOIA says that, if there is some other law on the 

books somewhere that puts information behind a closed door, that 

FOIA wouldn’t trump that. And that was in the original statute. 

And so they cited one of these that gives specific criteria to the 

agency to use. If disclosure would inhibit the security of aviation 

and other transportation, they cited that as a reason to not give out 

the data that they had voluntarily collected from various airports 

about wildlife strikes. 

Mr. CARTER. OK. Well, let me interject at this point now. You 

know, I’m all in favor of freedom of information, and I want to 

make that clear. 
47 

Mr. Sadler, I want to speak to you and your experiences with the 

FDA. And I’m assuming that you did more than just food products, 

that you did medications as well. 

Mr. SADLER. Yes, sir. 

Mr. CARTER. OK. Well, I’m a pharmacist, and I want to ask you: 

Were there ever any inquiries that you had that you were hesitant 

to release some of the information for fear that it might create 

panic within the citizenry, especially as it relates to medications, 

that, you know, they might stop taking their medications, that, you 

know, we struggle with compliance as it is? Did you ever run 

across that? 

Mr. SADLER. No, sir. What I did find was that FOIA functioned 

well when it worked with our Public Affairs Office and Legislative 

Affairs Office. And in situations where we thought there might be 

public concern, we would create individual pages. And as documents were reviewed and redacted, they were automatically 

uploaded in a manner of proactive disclosure. 

And a perfect example would be when the Chinese growers were 

using a pesticide on wheat products that was banned in North 

America. That wheat product was then shipped in a contaminated 

form to Canada and converted into dog food in the United States. 

There were more than 40 different brands that were impacted. 

We issue bulletins, work with Public Affairs, created a page specifically to address that. We’ve done the same thing on issues of pediatric vaccines as it impacts on autism. 

Mr. CARTER. Yes. You’re touching on something that is good because vaccines came right to my mind whenever I was thinking 

this. 

Mr. SADLER. We had litigation against the agency that was more 

than a million pages at issue, which required bringing in multiple 

attorneys on contract. 

Part of the difficulty that we experienced—personal opinion—was 

that the attorneys were looking for long-term employment in permanent positions rather than as contractors and they bailed as 

soon as they could find an alternative employment, setting back 

the agency’s ability to respond to litigation in a timely manner. 

The volume of requests is a problem. You can’t remediate some 

of these things, particularly when you’re dealing with truly old 

records and they are bad carbon copies. 

I think the agency has addressed public health issues quite well, 

and we do make available individuals to discuss these kinds of 

problems with the individuals, if they wish to pursue communication. 

Mr. CARTER. I think I’m out of time, but thank you very much 

for—— 

Mr. SADLER. May I add a parenthetical here? 

Mr. CARTER. Sure. 

Mr. SADLER. And this is in response to a couple of different questions, and I apologize for going over time. 

But I think in the statute I’m hearing a conflict potentially between the functions that are dedicated to OGIS and the functions 

that are dedicated to the Department of Justice. 

I would suggest that there be a clear line in defining the functions and processes of these two groups. The Office of Information 
48 

Policy and the Department of Justice is designated by statute as 

the arbiter of policy and interpretation, and OGIS is there to monitor, look for improvements, and then to work with the requester 

community for mediation. 

I think there is some commingling of these functions that’s going 

on. And, if that happens, a FOIA officer could, in theory, theory, 

receive different responses to the same question. I would like to see 

a more definitive break between the two organizations. 

They work hand in glove. There is a highly cooperative relationship. They frequently do training together. My friend, Ms. Nisbet, 

is a long-term friend of the head of the OIP, Ms. Pustay. And we 

all get along well. But it is confusing sometimes to both the FOIA 

community and to the requester community as to where you go. 

Mr. MEADOWS. I thank the gentleman from Georgia. I thank you 

for your response. You’re drawing the scenario that you all get 

along well. I want to come back and visit that. That is not what 

I’m hearing. 

So we’re going to go to the gentleman from Wisconsin, Mr. 

Grothman. 

Mr. GROTHMAN. Thanks much. 

For Mr. Blum, you have these—there are exemptions in Freedom 

of Information Act under what you call (b)(5). 

First of all, can you tell me about how often that that exemption 

it used. 

Mr. BLUM. I’m sorry? 

Mr. GROTHMAN. Can you tell me how often that exemption is 

used, the (b)(5) exemption. 

Mr. BLUM. It is used—I believe it’s thousands of times every 

year. 

Mr. GROTHMAN. Are there any times where you think it is inappropriate? Like can you give any examples of where you think it 

is wrongly used? 

Mr. BLUM. Well, the VA blocked the names—they declined to 

name hospitals where 19 veterans had died during delayed medical 

screening. The Bureau of Prisons refused to release names of companies that it had contracted to have access to prison labor and 

they used (b)(5). 

My understanding is the CIA claimed (b)(5) to withhold the history of the Bay of Pigs invasion. Again, I want to thank the National Security Archive, an independent group, for collecting these 

examples. 

The issue is not do people in government have the right to sit 

in a room and deliberate policy and come up with something that 

is good for the country. The issue is do they have the right to abuse 

that privilege. And we hope that what’s in the bill will help stop 

that. 

Mr. GROTHMAN. Ms. Nisbet, just a final comment from you. 

When I look at this area of the law, I see, you know, two problems, the one that we just kind of talked about in which agencies 

are either delaying—or not turning around requests quickly enough 

or denying requests, and the other problem is somebody who has 

been in government for a while. People can just pester you forever 

and you have to spend forever and ever responding to these re-
49 

quests on fishing expeditions and it just takes a tremendous 

amount of time. 

Could you give me, based upon your years of experience here, 

your suggestions for improvements in both these areas. 

Ms. NISBET. Well, I think an improvement has already been introduced into the law with the 2007 amendment, which did create 

a chief FOIA officer, made statutory the position of FOIA public liaison, and created the FOIA ombudsman’s office. 

I think with both delays and with problems of—let me just say 

maybe—frequent FOIA requesters is sometimes how they are referred to, people who just keep coming back and back and, in fact, 

maybe their issue is really not the FOIA, it is an underlying problem with the agency or with issues that the agency deals with. 

In both of those situations and other related procedural matters, 

having an office such as the FOIA public liaison or OGIS to be that 

neutral mediator to be able to sort of calm the parties down and 

bring them to a place where they can actually have a conversation 

or even a mediated conversation can really make a difference, and 

we have seen it more. 

Mr. GROTHMAN. Thank you. 

I yield the rest of my time. 

Mr. MEADOWS. I thank the gentleman from Wisconsin. 

The chair recognizes the ranking member of the full committee, 

who over the years has talked about restoring trust, and that’s a 

big item for Mr. Cummings. 

And so it is with great admiration that the chair recognizes Mr. 

Cummings, the gentleman from Maryland. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Mr. Blum, earlier this month Representative Issa and I introduced H.R. 653, the FOIA Oversight and Implementation Act. The 

bill codifies into law a presumption of openness. The bill does this 

by creating a legal presumption in favor of disclosure in response 

to FOIA requests. 

When President Obama took office, he issued a memo that directed agencies to administer FOIA with: ‘‘a clear presumption, in 

the face of doubt, openness prevails.’’ 

Is that accurate, what I just said? 

Mr. BLUM. Yes, sir. 

Mr. CUMMINGS. OK. The bill requires that records be disclosed 

under FOIA unless agencies can demonstrate ‘‘specific identifiable 

harm.’’ In 2009, Attorney General Holder issued a memo instructing agencies that the Department of Justice will defend FOIA denials only if, one, an agency reasonably foresees that disclosure 

would harm an interest protected by one of the statutory exemptions or, two, disclosure is prohibited by law. Is that right? 

Mr. BLUM. Yes. 

Mr. CUMMINGS. Now, Mr. Blum, you said in your testimony that 

you agree with adding these provisions to the FOIA statute. 

Let me ask you this: If the agencies are already required to do 

this under the administration’s policy, why is it important for Congress to pass these provisions into law? 

Mr. BLUM. Well, I think it is very important to take the 6 years’ 

experience that agencies have had and put them into law to assure 

that that’s the way, going forward—you know, in the next adminis-
50 

tration and in the next administration after that, that’s the appropriate starting point. 

You start in our democracy with the presumption of openness unless there is a very specific reason for not being transparent. And 

so it is important, I think, for future generations to have this in 

law. 

Mr. CUMMINGS. Last year the Department of Justice expressed 

some concern with this provision, suggesting that it might increase 

litigation and undermine the policy behind the exemptions. Mr. 

Obama’s bill would just codify DOJ’s own policy. Is that right? 

Mr. BLUM. That is true. Yes. It would just codify the Justice Department’s policy. 

Mr. CUMMINGS. So I take it that you don’t have similar concerns. 

Mr. BLUM. I do not. I do know that very, very late in the last 

Congress some concerns were raised. But the issues that they had 

raised I just don’t understand because there are already broad protections for some kinds of information that they were concerned 

about. 

Mr. CUMMINGS. The committee has also heard from some independent agencies that the presumption of openness standard might 

impact the ability to withhold certain information. 

Specifically, the Office of Comptroller of the Currency, the Consumer Financial Protection Bureau, and the Federal Trade Commission suggested that the bill could impact their ability to obtain 

information when they conducted exams of institutions they regulate. 

They suggested that banks and other regulated-related entities 

would not have certainty that the information they provided would 

be protected. 

Mr. Blum, how do you respond to those concerns? 

Mr. BLUM. Well, I really don’t understand those concerns because 

Exemption (8) is already a category that protects financial information, Exemption (8), and it is very, very broadly interpreted as a 

very broad protective exemption. 

And it was clarified to ensure that the SEC’s new authorities 

under Dodd-Frank, you know, could use Exemption (8). So I really 

think that there is very, very broad protections for this kind of information. 

Mr. CUMMINGS. So is there any reason to believe that the information that an agency is legitimately withholding under Exemption (8) would lose its protection under the bill? 

Mr. BLUM. I really don’t think this bill would change that or 

have the kind of damaging impact. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I yield 

back. 

Mr. MEADOWS. I thank the gentlemen. 

The chair recognizes himself for a series of questions not to exceed 5 minutes. 

And I want to just say thank you. And before I go any further, 

I want to publicly thank the staff that has worked so diligently. 

They normally are not the ones that are speaking, but they are always the one who are doing the work. And so I want to recognize 

them and thank them for the work. 
51 

Mr. Sadler, let me come to you. One of the quotations that I 

wrote down is you said there’s a tendency to ‘‘jump to litigation’’ 

when you were talking about that. Why do you think that would 

be, Mr. Sadler? 

Mr. SADLER. Strictly personal opinion, sir, but I think that there 

is a belief or an understanding on the part of a small segment of 

the requester community that FOIA is being given less attention 

than it is. 

I don’t think that these individuals necessarily understand the 

complexity of the implementation and they believe that they can 

then force production of records within a relatively short time. 

And, of course, one of the financial changes that was made is 

that, if an agency did not respond previously and then did during 

the course of litigation, the requester could ask the court to award 

attorney fees, which an agency would have to pay out of its operating fees. This could run into the hundreds of thousands of dollars. 

In bygone years, attorney fees would be handled by the Department of the Treasury from the Judgment Fund. That’s no longer 

the case as of 2007. We’ve lost a couple of cases in my agency usually as a result of timeframes or volume or complexity, but we did 

have one case where we had to pay $246,000 out of operating 

funds. 

Mr. MEADOWS. So the complaints that we get from folks that Mr. 

Blum talks to, actually, people that have called me prior to this 

hearing, say that, on a number of occasions, they feel like they just 

get stonewalled, that what happens is the Freedom of Information 

officer may want to comply and all they are doing is coming back 

and saying, ‘‘Well, we can’t get the information,’’ ‘‘We can’t get the 

information,’’ ‘‘We can’t get the information.’’ 

Would you say that that is an accurate characterization of—— 

Mr. SADLER. I think it has happened on occasion without question, sir. 

Mr. MEADOWS. Mr. Blum, would you agree with that? 

Mr. BLUM. I would. The FOIA officer is the one trying to get the 

records out and having difficulty. 

Mr. MEADOWS. So we need to empower the FOIA officers how? 

I mean, because—are they handicapped? 

Mr. BLUM. Well, I think the higher the attention within the 

agency to these problems, the better. 

Mr. MEADOWS. So if there is a problem, a memo needs to be sent 

to the ranking member so he can justify that? 

Mr. BLUM. Well, I think having a performing metrics that an 

agency head or their deputy can look at to say, ‘‘We have got a 

backlog in this office. Who else can pick up some slack?’’ or, ‘‘Why 

are we not doing as well as we need to? Let’s put some more resources help people like Mr. Sadler.’’ 

Those kinds of things can be very effective, and I think the bill 

tries to do some of that. 

Mr. MEADOWS. All right. Ms. Nisbet, how do we go about limiting 

the scope of a FOIA request where it is saying, you know, ‘‘Please 

send me 100,000 copies so I can go through and do the research’’ 

and make it much more—perhaps what I would say is a rapid response—if they will make it a much smaller request, they’d get a 
52 

much quicker response, versus saying, ‘‘We have this broad brush 

we’re going to stroke it with. And we’ll comply with that, but that 

may take 12 months to comply with. If you will, narrow the scope 

in terms of your question?’’ Is that something that’s reasonable? 

Ms. NISBET. It is very reasonable, and I think it is happening 

more and more. But that is precisely where you need the FOIA 

public liaison or OGIS to be able to have that conversation. 

In other words, you really need to have the requester and the 

FOIA office talking about what kind of records there are, what 

there might be, what could be gotten much more quickly, as you 

say. 

That also, Mr. Chairman, requires trust, and that’s often lacking, 

I think, because, until recently, there has not been an alternative 

other than litigation. And so the parties become very adversarial. 

But as trust builds and as those conversations are held, it should 

work better. We have certainly seen that it works better. 

Mr. MEADOWS. So would you say that the agency that you used 

to head up as director—would it be better if they were empowered 

with more autonomy and more decisionmaking instead of having to 

go through OMB and some of the other areas to give that agency 

more independence and autonomy? 

Ms. NISBET. Well, the ability to convene parties and to conduct 

mediation I think certainly is something that has worked well for 

OGIS. 

The independence, as one of its criteria or one of its abilities, certainly helps both with the mediation and, also, with the reviewing 

on compliance and reporting on compliance. So I think it helps in 

both respects. 

Mr. MEADOWS. I have exceeded my time. I’ll certainly allow the 

ranking member to do—they have called votes. He can do a closing 

Statement, if he’d like. And then we’ll finish up. 

But I would like to say that, if you have policy recommendations, 

the ranking member and I were discussing we would love to hear 

it and we consider this a priority and we will take action on that. 

So the chair recognizes the ranking member for a closing Statement. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Actually, I just want to piggyback on the point you were just 

making because, you know, sometimes when we talk about FOIA, 

it’s good government, it’s openness, it’s sunshine, and we’re just 

seeking the truth. And we have bureaucrats who are just 

stonewalling and not cooperating and, ‘‘What’s wrong with them?’’ 

and, ‘‘Why can’t they get with the program?’’ Well, it’s not that simple. 

I was on the receiving end for 14 years of FOIA requests, as an 

elected official in local government, and often the scope of a FOIA 

was so broad that we didn’t know what to do with it. You know, 

if I really responded to what you’re literally asking for, we’d have 

to hire huge truckloads of documents to deliver them to you and 

it would take forever and lots of money. 

Can we work together on limiting the scope or being more precise 

in what it is you are really seeking? And I think that’s another aspect of it because it is easy for someone to say, ‘‘Well, I think you’re 

stonewalling’’ when the mistake is mine in not being more precise 
53 

in the request. And, actually, it is not because of resistance. It’s 

you trying to figure out what my request is really getting at. 

And so trying to narrow those differences I think is very important so that we do avoid unnecessary litigation and that we try to 

be more precise in the language of the law when it comes to scope. 

So thank you for bringing that up because I think that really is 

another dimension of this. 

And thank you to the panel for being here today. 

Mr. MEADOWS. So I’d like to thank the witnesses for taking the 

time to appear today. 

If there is no further business, without objection, the subcommittee stands adjourned. 

[Whereupon, at 10:32 a.m., the subcommittee was adjourned.] 

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