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THE STATE OF THE FOIA: ASSESSING AGENCY

EFFORTS TO MEET FOIA REQUIREMENTS

HEARING

BEFORE THE

SUBCOMMITTEE ON INFORMATION POLICY,

CENSUS, AND NATIONAL ARCHIVES

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

FEBRUARY 14, 2007

Serial No. 110–56

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

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

——— ———

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND NATIONAL ARCHIVES

WM. LACY CLAY, Missouri, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

JOHN A. YARMUTH, Kentucky

PAUL W. HODES, New Hampshire

MICHAEL R. TURNER, Ohio

CHRIS CANNON, Utah

BILL SALI, Idaho

TONY HAYWOOD, Staff Director

(III)

C O N T E N T S

Page

Hearing held on February 14, 2007 ....................................................................... 1

Statement of:

Hoyt, Clark, McClatchy Newspapers, on behalf of the Sunshine in Government Initiative; Caroline Fredrickson, director, Washington Legislative Office, American Civil Liberties Union; and Meredith Fuchs, general counsel, National Security Archive at George Washington University .................................................................................................................. 80

Fredrickson, Caroline ................................................................................ 93

Fuchs, Meredith ........................................................................................ 115

Hoyt, Clark ................................................................................................ 80

Koontz, Linda, Director, Information Management, Government Accountability Office; and Melanie Ann Pustay, Acting Director, Office of Information and Privacy, U.S. Department of Justice ....................................... 7

Koontz, Linda ............................................................................................ 7

Pustay, Melanie Ann ................................................................................. 58

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

Fuchs, Meredith, general counsel, National Security Archive at George

Washington University, prepared statement of ......................................... 118

Hoyt, Clark, McClatchy Newspapers, on behalf of the Sunshine in Government Initiative:

Followup questions and responses ........................................................... 149

Prepared statement of ............................................................................... 83

Koontz, Linda, Director, Information Management, Government Accountability Office, prepared statement of ........................................................... 10

Pustay, Melanie Ann, Acting Director, Office of Information and Privacy,

U.S. Department of Justice, prepared statement of ................................... 60

Romero, Anthony D., executive director, American Civil Liberties Union,

prepared statement of ................................................................................... 96

Yarmuth, Hon. John A., a Representative in Congress from the State

of Kentucky, prepared statement of ............................................................ 191

(1)

THE STATE OF THE FOIA: ASSESSING AGENCY EFFORTS TO MEET FOIA REQUIREMENTS

WEDNESDAY, FEBRUARY 14, 2007

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 2:35 p.m. in room

2154, Rayburn House Office Building, Hon. Wm. Lacy Clay (chairman of the subcommittee) presiding.

Present: Representatives Clay, Maloney, Yarmuth, Hodes, Turner, and Sali.

Staff present: Tony Haywood, staff director/counsel; Alissa

Bonner, Adam C. Bordes, and Anna Laitin, professional staff members; Jean Gosa, clerk; Leneal Scott, information systems manager;

Chas Phillips, minority counsel; and Benjamin Chance, minority

clerk.

Mr. CLAY. The Subcommittee on Information Policy, Census, and

National Archives of the Committee on Oversight and Government

Reform will now come to order.

Today’s hearing, our first of the 110th Congress, will examine

issues relating to executive branch agency compliance with the

Freedom of Information Act.

Without objection, the Chair and ranking minority member will

have 5 minutes to make opening statements, followed by opening

statements not to exceed 3 minutes by any other committee member who seeks recognition.

Without objection, Members and witnesses may have five legislative days to submit a written statement or extraneous materials for

the record.

Let me start by saying good afternoon and welcome to the first

hearing of the 110th Congress before the Subcommittee on Information Policy, Census, and National Archives. It is my honor and

pleasure to be here as chairman. I look forward to continuing my

working relationship with the subcommittee’s distinguished ranking minority member, Mr. Turner, and let me also extend a warm

welcome to our returning members and new members, as well.

One of the cornerstones of our democracy is the ability of citizens

to have timely access to Government information and records of all

kinds. Enacted over four decades ago, the Freedom of Information

Act [FOIA], strengthened this ability. Under FOIA, any person has

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a right, enforceable in court, to obtain access to Federal agency

records, except in very limited circumstances.

Regrettably, we have witnessed a recent decline in the accessibility and transparency of Government information. In particular, we

have seen the Bush administration establish policies that encourage executive branch agencies to withhold information that might

otherwise become available to the public by way of the FOIA request. Thus, I am deeply concerned that this administration appears to be shielding information that ought to be accessible to the

public.

In 2005, President Bush issued Executive Order 13392 in order

to reduce the backlog of requests and improve the overall management of FOIA activity. While this was a good first step, the Executive order has not addressed a number of significant barriers to

open government. These barriers include the administration’s own

application of restrictive standards for disclosure and increased use

of FOIA exemptions to withhold non-sensitive information and the

application of pseudo classifications for many agency reports.

Last fall this subcommittee approved bipartisan legislation to improve the FOIA process in several key areas. This bill, the Open

Government Act of 2005, H.R. 867, proposed to reduce the number

of disputed FOIA requests through mediation and improve the information that agencies report to Congress concerning their FOIA

activities.

In my view, this legislation provided a practical and measured

approach to remedying the problems identified by the requestor

community, and I believe it is an excellent starting point for legislation in this Congress.

Today’s hearing offers an opportunity to learn where the FOIA

process is failing, what benefits are being realized from the recent

Executive order, and whether legislation to remedy the aforementioned problem is required.

I am pleased that we have a very distinguished and expert group

of witnesses to help us sort through these issues.

Appearing on our first panel will be Linda Koontz, Director of Informational Policy at GAO and Melanie Ann Pustay, Acting Director of the Justice Department’s Office of Investigation and Privacy.

Our second panel will feature three private sector witnesses:

Clark Hoyt, on behalf of the Sunshine in Government Initiative;

Caroline Fredrickson, director of the Washington Legislative Office

of the American Civil Liberties Union; and Meredith Fuchs, general counsel for the National Security Archive at G.W. University.

I thank all of our witnesses for joining us today and we look forward to your testimony.

[The prepared statement of Hon. Wm. Lacy Clay follows:]

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Mr. CLAY. I now yield to the minority member here—from Idaho?

Mr. SALI. From Idaho, Mr. Chairman.

Mr. CLAY. Thank you. I yield 5 minutes to the gentleman if you

have an opening statement.

Mr. SALI. Mr. Chairman, I don’t really have an opening statement, just to say that I am happy to be a member of the subcommittee and am looking forward to working with you the next

2 years.

Mr. CLAY. Thank you, and welcome to the committee.

Are there any other members of the committee with an opening

statement? The gentlelady from California.

Mrs. MALONEY. From New York.

Mr. CLAY. From New York. I am sorry.

Mrs. MALONEY. The information capital of the world.

Mr. CLAY. You are right. I yield three.

Mrs. MALONEY. I want to thank Chairman Clay and Ranking

Member Turner—I am sure he is on his way—for holding this very

important hearing on FOIA. I would say that the issue of openness

in our Government is absolutely critical to our democracy, and it

is important that the press and others and citizens and everyone

have access to this information.

I have been pushing for more openness and Government transparency since I came to Congress in 1992, and was pleased to be

a lead sponsor on the Electronic Freedom of Information Act of

1996. That is a very important piece of legislation that was intended to provide the Government, the public, and press greater access and efficiency to information through the electronic format,

and it was intended to bring FOIA from the technological Stone

Age into the Information Age. I am very interested in hearing how

is this working, can people really access it through the Electronic

Freedom of Information Act, and how it is moving forward.

I look forward to the report from GAO. They did report in 2005

that the percentage of FOIA requests processed varied greatly from

agency to agency, and at the same year the President realized this

also and issued an Executive order which requires agencies to review their FOIA requirements and develop an agency-specific plan

to report to the AG and Director of OMB. As I understand, GAO

is currently reviewing these plans.

I have cosponsored several bills in prior Congresses. What I am

really concerned about is, when you finally get the FOIA request,

sometimes a year later, half of it is redacted and you don’t know

why it is redacted. I am interested in whatever the standards are

for an agency or anyone to determine that they can just block out

whole periods of information. I would like to know is there an appeal process where the public or the press or other members of

Government can appeal to a higher-up on whether or not the information that they are redacting can be accessible to the public. I

think that is very important.

It is important to have a FOIA process, but I had one constituent

who came in and said, ‘‘I did this FOIA request.’’ He comes in with

reams of paper where they are writing back and forth about what

day they can meet, and then the information on the day they met

was excluded. So you have reams of, ‘‘Can we meet on Monday,

Tuesday, February, January,’’ but then the meat of whatever was

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supposed to happen was totally excluded and redacted. That is a

ridiculous law if all you are getting is meeting appointments and

not what is actually taking place.

I think this is really, really very important to our democracy, and

I have heard many complaints from members of the press that they

can’t get access to documents, they are stonewalled and can’t get

access to it, so I think it is important that we are having this hearing. I support it.

I yield back the balance of my time.

Mr. CLAY. I thank the gentlelady from New York for her comments.

Are there any other opening statements? The gentleman from

New Hampshire?

Mr. HODES. Thank you, Mr. Chairman.

I look forward to this hearing and I look forward to your leadership on this subcommittee.

I come from New Hampshire, where citizen privacy and open

government are hallmarks of what we care about in terms of good

government, and we are now in the 21st century where we are

transitioning from an industrial economy to the Information Age.

We have also seen in recent years an administration which has

taken Government secrecy to new levels. In that context, I think

our examination of FOIA and what needs to be done with it takes

on special importance. I look forward to the hearing.

I thank you and I yield back the balance of my time.

Mr. CLAY. I thank the gentleman for his comments.

If there are no additional opening statements, the subcommittee

will now receive testimony from the witnesses before us today. Our

first panel of witnesses will be: Ms. Linda Koontz, who is the Director of Information Management Issues at the Government Accountability Office, as well as Ms. Melanie Ann Pustay, who is Acting

Director of the Office of Information and Privacy at the Department of Justice.

It is the policy of the Committee on Oversight and Government

Reform to swear in all witnesses before they testify.

[Witnesses sworn.]

Mr. CLAY. Let the record show that both have answered in the

affirmative.

We will now ask that each witness give a brief summary of their

testimony, and to keep the summary under 5 minutes in duration.

Bear in mind your complete written statement will be included in

the hearing record.

Ms. Koontz, let’s begin with you.

STATEMENTS OF LINDA KOONTZ, DIRECTOR, INFORMATION

MANAGEMENT, GOVERNMENT ACCOUNTABILITY OFFICE;

AND MELANIE ANN PUSTAY, ACTING DIRECTOR, OFFICE OF

INFORMATION AND PRIVACY, U.S. DEPARTMENT OF JUSTICE

STATEMENT OF LINDA KOONTZ

Ms. KOONTZ. Mr. Chairman and members of the subcommittee,

I appreciate the opportunity to participate in today’s hearing on the

Freedom of Information Act. This important statute establishes

that Federal agencies must provide access to Government informaVerDate 11-MAY-2000 10:36 Jul 16, 2008 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\43029.TXT KATIE PsN: KATIE
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tion so that the public can learn about Government operations and

decisions.

As you know, under the act agencies report annually on their

FOIA processing. In addition, a recent Executive order directs

agencies to develop plans to improve FOIA operations, including

goals to reduce backlogs in requests and to increase communication

with requestors and the public.

My statement today is based on work for which the subcommittee is a co-requestor with Representative Platts, the former chairman of the Subcommittee on Government Management, Finance,

and Accountability. Our draft report on this work is currently out

for comment with the agencies. For this study we focused on 25 of

the largest departments and agencies to determine trends in FOIA

processing, as reflected in agency annual reports, and whether

agency plans address the improvement areas emphasized in the

Executive order.

In terms of trends, citizens continue to request and receive increasing amounts of information from the Federal Government

through FOIA; however, the rate of increase has flattened in recent

years. In saying this, I am excluding statistics from the Social Security Administration which reported over 17 million requests for

fiscal year 2005, a jump of about 16 million requests from the year

before. Including these numbers would obscure year-to-year Government-wide comparisons. In addition, I am excluding statistics

from the Department of Agriculture because we determined that

one of its major components could not provide reliable data.

Also, according to annual reports, agencies provided records in

full about 87 percent of the time, which is about the same as in

previous years. At the same time, the number of pending requests

at the end of the year has been steadily increasing, and the rate

of increase has been greater every year since 2002.

Agency reports also show great variations in the median times

to process requests: less than 10 days for some agency components

to more than 100 at others. However, because processing times are

reported as median business days, generalizations are limited. Medians are good for providing representative numbers and are not

skewed by a few extreme outliers, but, unlike averages, medians

cannot be added together. This means that we cannot provide median statistics from several agencies to develop a number representing overall processing across Government, for example, or

across major departments or across similar agencies. Being able to

aggregate data in this way could be useful in monitoring efforts to

improve processing and reduce the increasing backlog of requests.

In our draft report we suggest that the Congress consider improving the usefulness of the agency annual FOIA reports by requiring agencies to report averages and ranges, in addition to median numbers. We are also recommending that Justice provide aggregated statistics and summaries of the annual reports, which

Justice officials have told us that they plan to do.

I would like to turn for a minute to the Executive order. In the

order, agencies were directed to review their FOIA operations and

develop improvement plans. The order emphasized four areas: reducing backlog, increasing proactive dissemination of records, imVerDate 11-MAY-2000 10:36 Jul 16, 2008 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\43029.TXT KATIE PsN: KATIE
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proving communications with requestors on the status of their requests, and increasing public awareness of FOIA processing.

Our review showed that the 25 agency plans generally included

goals and timetables addressing the four areas. The plans describe

numerous improvement activities, such as improving automation

and increasing staff training, that are expected to contribute to

achieving the goals of the order. Reducing backlog was a major

focus, and almost all agencies set measurable goals and timeframes.

Agencies also generally set milestones for the other areas of improvement emphasized by the order. For example, to increase public awareness, agencies generally plan to insure that their public

FOIA reference guides were comprehensive and up to date. In our

draft report, we are making recommendations to strengthen specific agency plans.

In summary, Mr. Chairman, the annual FOIA reports continue

to provide valuable information about citizens’ use of this important tool for obtaining information about Government operation

and decisions. Increasing requirements for annual reporting would

further improve the public visibility of the Government’s implementation of FOIA. In addition, the Executive order provided a useful

impetus for agencies to review their FOIA operations and ensure

that they are appropriately responsive to the public. However, it

will be important for Justice and the agencies to continue to refine

their plans and monitor progress and implementation.

Mr. Chairman, that concludes my statement. I would be happy

to answer questions at the appropriate time.

[The prepared statement of Ms. Koontz follows:]

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Mr. CLAY. Thank you so much for that testimony, Ms. Koontz.

Ms. Pustay, please?

STATEMENT OF MELANIE ANN PUSTAY

Ms. PUSTAY. Thank you, Mr. Chairman and members of the subcommittee.

My name is Melanie Pustay, and I am the Acting Director of the

Department’s Office of Information and Privacy [OIP], and I am

pleased to be here this afternoon to address the subject of the Freedom of Information Act and the status of the implementation of Executive Order 13392.

The Department of Justice is the lead Federal agency for implementation of the FOIA, and it works through OIP to encourage

uniform and proper compliance with the act by all agencies.

Currently, the Federal agencies that are subject to the FOIA face

a major challenge in processing several million requests per year

at a cost exceeding $300 million annually. This large amount of

FOIA activity represents a steady increase in the number of requests received by the Federal Government since 2001, and agencies have worked diligently to keep up with this activity.

This does not mean that there is not room for improvement. On

December 14th the President issued Executive Order 13392, which

established a citizen-centered and result-oriented approach to administration of the FOIA. The Executive order required each agency to conduct a review of its FOIA operations, to develop an agency-specific plan to improve its administration of the FOIA, and to

include in its annual FOIA reports for the next 2 fiscal years a description of its progress in meeting the goals and milestones established in the implementation plan.

To ensure Government-wide compliance, the Executive order

charged both the Department of Justice and OMB with coordinating efforts.

Soon after the President issued his order, each agency appointed

a chief FOIA officer and then established FOIA requestor service

centers and designated FOIA public liaisons. As agencies worked to

develop their FOIA improvement plans, the Department of Justice

and OMB convened a conference for the newly designated chief

FOIA officers. The conference was keynoted by the associate attorney general and OMB’s deputy director for management, whose

very presence and remarks illustrated the importance of this Presidential initiative.

Importantly, the Department also provided extensive written

guidance to all agencies that contained discussions of more than

two dozen potential improvement areas and included supplemental

guidelines on the new reporting requirements for agency annual

FOIA reports.

In the summer of 2006, after completion of agency plans, the Department held a second conference for approximately 150 FOIA

public liaisons that emphasized the important roles of these liaisons play. In accordance with the Executive order, the attorney

general then reviewed the agencies’ implementation plans, and on

October 16th, in coordination with OMB, submitted to the President a report on agency FOIA implementation activities. In that report, the attorney general recommended holding a followup meetVerDate 11-MAY-2000 10:36 Jul 16, 2008 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 C:\DOCS\43029.TXT KATIE PsN: KATIE
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ing of chief FOIA officers, and, significantly, recommended exploring the increased use of information technology to improve agency

FOIA operations.

That followup meeting was held on November 9th of last year,

and included remarks by the acting associate attorney general, who

is the Department’s chief FOIA officer. At that conference, the Department also announced the formation of a technology working

group that is going to explore options and share information regarding the use of technology.

The most recent activity under the Executive order concerns the

requirement that each agency submit with its annual FOIA report

a description of the agency’s progress in meeting its milestones

under the plan. The Department of Justice, as the lead implementation agency, completed its annual FOIA report on January 19th,

2 weeks in advance of the February deadline, and we posted it on

our Web site in order for it to serve as a model for all other agencies.

To date, virtually all agencies have submitted their FOIA annual

reports to our Department for review. After submission, we work

with the agencies to ensure that their reports meet the technical

requirements of the FOIA and the Executive order, and then, once

that process is complete, we post the report on the Web site.

The next major step under the Executive order will be a review

by the attorney general of the agencies’ progress in implementing

their FOIA improvement plans. The attorney general will report on

that progress to the president on June 1, 2007, and a second such

review will be made June 1, 2008.

In conclusion, you can be assured that the Department of Justice

looks forward to working with the subcommittee on this matter. I

am pleased to answer any questions that you or your staff might

have.

Thank you.

[The prepared statement of Ms. Pustay follows:]

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Mr. CLAY. Thank you very much, Ms. Pustay, for your testimony.

We will now move to the question period, and we will proceed

under the 5-minute rule.

Now our ranking member, Mr. Turner of Ohio, has joined us, so

I will let him proceed with his opening statement of up to 5 minutes, and then questioning of up to 5 minutes.

Mr. Turner.

Mr. TURNER. Thank you, Mr. Chairman. I want to thank you for

holding this hearing, and I would like to congratulate you on your

first hearing as chairman of this subcommittee. I look forward to

working with you over the months to come, and I appreciate your

hospitality as we have had discussions concerning the opportunities

that this committee presents, and I appreciate your openness and

your partnership.

The FOIA statute has become a popular tool of inquiry for the

press, researchers, businesses, prisoners, attorneys, activists, and

foreign interests, but it is also a tool for the individual. Given the

public interest at stake, I think improving the procedural aspects

of the act is certainly a worthy goal. Nevertheless, I hope we can

continue to balance the need for open government with the need to

protect information vital to national security and homeland security, and I hope we all keep in mind the importance of individual

privacy throughout this discussion.

Today I look forward to hearing the testimony and the ideas and

the thoughts of how we might improve this act. It is important that

we have a review of the FOIA processing trends, and from the public interest groups, all of whom are passionate advocates for unfettered access to Government records.

I thank the chairman, and certainly I thank this first panel for

their thoughts and comments.

Ms. Koontz, I appreciate the work of GAO and the extensive review that you have done. Could you tell us what department or

agency handles FOIA the most effectively?

Ms. KOONTZ. That is a very difficult question to start out with.

Mr. TURNER. If we are looking for a model, who gets the best in

class that we might look at for an example?

Ms. KOONTZ. I think that would be very, very difficult to answer,

and I think part of the reason that it is is because there is so much

difference between different agencies, what they have to deal with.

It would be very easy for me to say, well, it is the National Science

Foundation, but I know the National Science Foundation has 300

requests a year, and I know that they are of a particular type, so

they don’t maybe have the challenges that maybe other agencies,

such as maybe State Department or CIA, might have. So I think

that coming up with the metrics that would allow me as an auditor

to answer that question, I don’t think I have them.

Mr. TURNER. Well, what are some of the things that you do see

in those that you admire that would be best practices that you

would like to highlight?

Ms. KOONTZ. I don’t know that we have actually recently looked

at agency processing. I do know, from looking at the overall agency

trends, though, a lot of it seems to be driven by the sort of requests

that agencies get. If you look at a certain class of agencies, if you

look at VA, if you look at SSA, if you look at HHS, if you look at

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agencies that are very sort of have a customer base and they interact with the public quite a bit, you see people coming to them very

routinely for specific kinds of information, and you see that information granted in full and turned around fairly quickly.

Then you see other situations that are much more challenging,

in terms of the kinds of information that people are asking for,

where it may involve sensitive information, it may involve privacy

information, may involve review and redaction, and that makes for

a much more complicated landscape, and it is very hard to compare

the two.

Mr. TURNER. Looking for the Department of Justice’s perspective

in the Executive order, how has its implementation occurred, and

has it had time really to take effect as we look at what amendments or processes that we might want to change in the act.

Ms. PUSTAY. Well, it is important to remember that at this point

the agencies have only had 6 months of implementation activity.

Their review and plans were completed in June of last year, and

what they are just now reporting to us is their efforts basically

from June to December, so it is only 6 months time. But I have

been very, very encouraged and very pleased with what I have seen

so far in the annual reports, the reports of the progress that the

agencies have made. I think it is quite remarkable that many agencies have reduced their backlogs, have set up new training programs, have set up computerized system to track requests. In 6

months time, there has been a lot of very, very positive activity on

the part of agencies.

Mr. TURNER. Many times when we think of FOIA we think of the

press and investigative reporting, but we can’t lose sight of the fact

that so many of these requests are first person requests. Can you

give us an idea as to what percentage or how the first person requests rank in comparison to the other requests that are processed?

Ms. PUSTAY. I think first party requests where people ask for

their own records are certainly the most common type of request

across agencies, but, as Ms. Koontz said, certain types of agencies

are really conducive to that kind of request coming in, like VA and

Social Security Administration. You don’t get as many with Department of Homeland Security, for example. But law enforcement

agencies such as the Department of Justice, of course the agency

I am most familiar with, we have the FBI as a component that is

a quite popular component for prisoner requestors who are interested in finding out what their FBI file contains on them. Certainly, with many, many people are curious to know what kind of

records any agency of the Federal Government has on them, so it

is a common request.

Mr. TURNER. Thank you, Mr. Chairman.

Mr. CLAY. Thank you, Mr. Turner, for your comments and your

questions.

Ms. Koontz, since the President issued Executive Order 13392 in

December 2005, have there been any measurable improvements in

agency FOIA operations? Has the addition of agency FOIA public

liaisons improved agency response times or reduced the number of

disputed requests?

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Ms. KOONTZ. I think overall I would say that we were impressed

with the quality of the improvement plans. I think agencies took

them seriously and they included the areas that were emphasized

in the Executive order, but I think that it is too soon for us to say

whether or not there has been improvements.

Our testimony today is based on the data that was reported in

February 2006, and the new data is not in for us to look at, but

when that occurs and when the new reports come in, I think we

will then have a basis for determining what improvements have

been made and what new trends we might be seeing.

Mr. CLAY. And how smoothly do you think the implementation

went, as far as setting up the different offices in those agencies?

Ms. KOONTZ. I can just say that we know in each case that the

offices were set up. I don’t think we are in a position yet to say

how effectively those offices are operating.

Mr. CLAY. Thank you. In your written testimony you note that

GAO cannot make many generalizations about agency response

under FOIA because of the limited information——

Ms. KOONTZ. Yes.

Mr. CLAY [continuing]. That they are required to report. How has

the fact that agencies are only required to report the median number of days to respond impacted your analysis? And can you suggest ways to improve agency FOIA reporting requirements to ensure proper congressional oversight?

Ms. KOONTZ. When agencies report medians, as required in the

law—and they often report median dates on a component-by-component basis—that provides, shall we say, one perspective on agency performance, but the limitation there is that, because it is a median, we can’t add them up. We can’t give you a number of how

the Government is doing as a whole and what are the trends from

year to year.

Our suggestion has been that agencies should also be required,

and we suggest that the Congress consider requiring them to also

report statistics such as the average and the range, which would

provide more of a suite of statistics that would help us make sense

of the information that agencies are reporting.

I know that median was probably selected because it is not subject to skewing by outliers, but it presents other difficulties in

terms of being able to get a Government-wide picture of our performance.

Mr. CLAY. Thank you for your response.

Ms. Pustay, every 2 years the Department of Justice publishes

a guide to FOIA. I understand that the latest edition was due to

be printed in November of last year, but 3 months later is still not

available. This report is expected to include new information about

the Executive order. What has happened to that report?

Ms. PUSTAY. The actual original date was for December of last

year, and I think the best answer is that it was an overly optimistic projected date for the guide to be available. It is still being reviewed internally within the Department of Justice.

You can imagine that it is a topic of great interest to me, and

I am the first person that will want to get it out when the review

is finished.

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Mr. CLAY. Well, you know, even if it was due in December, we

are still 2 months behind.

Ms. PUSTAY. Yes.

Mr. CLAY. I think it is important for the Justice Department to

also understand that we need to have transparency in Government.

We need to bring everything to the light of day, as much as we can,

to the public. So would you go back and tell your superiors that

they would try to get this report out in due haste.

Ms. PUSTAY. I don’t need to do that because I have been working

with people within the Department of Justice to get the guide reviewed internally. You have to keep in mind that it has now grown

to 1,000 pages, so it is quite a daunting task for anyone to try to

review it, and so I understand why it is taking time. But obviously

my efforts since I have been Acting Director, one of the first things

I did was make a call to find out the status of the guide, so it is

something I am actively working on. I can assure you of that.

Mr. CLAY. Any estimation on its release?

Ms. PUSTAY. I feel like, after what happened with the first estimated time, that is the last thing I should do is give a new estimate.

Mr. CLAY. We are waiting patiently here to see the report, too.

Ms. PUSTAY. I know. I know lots of people are looking forward

to our guide coming out. As I said, no one is looking forward to it

coming out more than me.

Mr. CLAY. Thank you very much for your response.

Mr. Hodes.

Mr. HODES. Thank you, Mr. Chairman.

Ms. Pustay, a couple of questions for you. In October 2001 the

Ashcroft memorandum was issued, which essentially discouraged

agencies from releasing documents under FOIA if technical

grounds could be found to justify the withholding, and it directed

that the DOJ would defend agency decisions to assert FOIA exemptions unless they lacked a sound legal basis. And, similarly, in

2002 the then White House chief of staff Andrew Card issued a

memorandum urging agencies to safeguard information deemed

sensitive but unclassified.

How do those two memorandums work in conjunction with the

December 2005, Executive order from President Bush that your

agency is in charge of?

Ms. PUSTAY. To go from the back forward, on the comment about

sensitive but unclassified information, the key point there in the

context of the Freedom of Information Act is that a marking on a

document is simply a signal to people, to anybody who is processing

a request, that document has sensitivity. It is a marking to enable

people within an agency to appropriately handle the document

within the agency. It is absolutely not a basis to withhold information.

Our office has consistently advised agencies, since the Card

memo came out and before that, that markings on documents are

not independent grounds for withholding. You always have to have

one of the nine FOIA exemptions apply before a document can be

withheld. So the marking is not dispositive, when you are talking

about release or not under the FOIA.

Now, on the Ashcroft memorandum——

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Mr. HODES. Thank you.

Ms. PUSTAY [continuing]. The key point of the Ashcroft memorandum was that it advised agencies to take into account that of

course there is interest, there are interests on the part of the public

in learning about the Government, and in transparency that is the

whole purpose of the Freedom of Information Act. But at the same

time, when Congress passed the FOIA, Congress put in nine exemptions to the FOIA that protect very important interests. Personal privacy has been mentioned here already. Obviously, national

security, law enforcement information, business information—the

Government records are filled with lots and lots of information that

implicate all those other important interests. What the Ashcroft

memorandum does is tell agencies, whenever they are making a decision to disclose or not under the FOIA, to keep in mind the important interests that are protected by the exemptions. So all of

that is a very logical and reasonable way to look at administration

of the FOIA.

Finally, you were asking how that worked in the Executive order.

Actually, the Executive order doesn’t address the substantive exemptions. The Executive order is addressed completely to the processes by which FOIA is administered, and it is designed to help

agencies set up systems where requestors can learn about their requests more readily, have their requests processed more quickly. It

doesn’t address in any way the substance of what is released or

withheld.

Mr. HODES. Thank you. Is it your testimony that, as a result of

the Card memorandum and the Ashcroft memorandum, DOJ has

not narrowed down in any way the way it tells its agencies to respond in FOIA requests or changed the criteria in any way?

Ms. PUSTAY. It has not changed. It is a fact that it has not

changed the legal requirements for withholding information under

the FOIA, because those are governed by the exemptions that are

in the statute.

Mr. HODES. What has changed?

Ms. PUSTAY. The change from the Ashcroft memorandum, which

it is really the only one that really has made a change, is that it

is a different tone. I think that is the way it has been described

in the past.

Typically, when attorney generals come into office—this has happened back starting in the 1980’s—attorney generals will typically

issue a memorandum kind of giving their perspective or their direction in terms of how the Freedom of Information Act should be implemented. Attorney General William Bell had a FOIA memorandum and Janet Reno had one and John Ashcroft had one. The

change that there is with the Ashcroft memorandum is more the

tone, because the tone emphasizes that there are important interests to be protected by the FOIA’s exemptions, and that is the difference. I think it is making agencies aware of the fact that there

are important public interests in protecting information.

Mr. HODES. Let me just followup briefly, if I may.

Mr. CLAY. Sure.

Mr. HODES. Would you agree with me that, prior to the Ashcroft

memorandum, previous policies stated that agencies should release

requested information absent some finding of harm?

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Ms. PUSTAY. Yes. Under Janet Reno, her memorandum on the

FOIA actually affirmatively encouraged agencies to make what we

called discretionary releases of information. That is information

that fits within an exemption but which an agency is always free

legally to say I am looking at a document, it fits within an exemption, but using my discretion I am going to release that information. Agencies are always free to do that because the FOIA exemptions are not mandatory.

Now, under Attorney General Reno’s memorandum, she actively

encouraged agencies to make discretionary disclosures of information. Now, the Ashcroft memorandum does not actively encourage

discretionary disclosure. That is true. But it still makes reference

to the fact that when agencies consider making a discretionary disclosure they should keep in mind the competing interests underlying the exemptions.

Mr. HODES. If I may, Mr. Chairman, I have one last question.

Mr. CLAY. Go ahead, Mr. Hodes.

Mr. HODES. Am I correct that as of today you are still operating

under the strictures of the Ashcroft memorandum?

Ms. PUSTAY. Yes, that is correct.

Mr. HODES. Thank you. Thank you, Mr. Chairman.

Mr. CLAY. Thank you so much for that line of questioning, Mr.

Hodes.

Going to our second round of questioning, Mr. Turner, did you

have a second round for this panel?

Mr. TURNER. Yes, Mr. Chairman.

Mr. CLAY. Please proceed.

Mr. TURNER. I am looking here at the Janet Reno memo, itself,

and it is going over the prior discussions in the prior administrations concerning FOIA, and it says, ‘‘The Department will no longer

defend an agency’s withholding of information merely because

there is a substantial legal basis for doing so,’’ and being a lawyer

that always concerns me, because if there is a substantial legal

basis you would think that would be something you would want to

do. ‘‘But rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure.’’ But

obviously you have to have some guidelines on a presumption of

disclosure, because otherwise you would just be giving everything

away. And we all acknowledge that there are some things, both for

our national security, which would be our collective interest——

Ms. PUSTAY. Right.

Mr. TURNER [continuing]. And our personal privacy, which is our

individual interests——

Ms. PUSTAY. Right.

Mr. TURNER [continuing]. That things should not be merely just

posted in the town square and available to anyone to peruse.

Ms. PUSTAY. Exactly.

Mr. TURNER. So, in order to switch from a substantial legal basis

for doing so, which I always thought meant someone had done a

legal analysis and therefore there was a conclusion that the information should be withheld, to go to a presumption of disclosure

there has to be some standard you apply, and looking at it, it says,

‘‘Yet, the act’s exemptions are designed to guard against harm to

Government—’’ that is a good thing—‘‘and private interests.’’ That

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is a good thing. ‘‘I firmly believe that these exemptions are best applied with specific reference to such harm, and only after consideration of the reasonably expected consequences of disclosure.’’ Well,

in the act, itself, there are a series of exceptions where we have collectively, both the prior administrations in signing the act and

amendments, and the Congress in enacting them, have established

categories where we have assumed that there would be consequence of disclosure. That is why we accepted them.

Ms. PUSTAY. That is right.

Mr. TURNER. We said don’t put it out in these areas because we

have had hearings, we have deliberated, and we believe these categories could have harm to either the Government and/or to individual interests.

Ms. PUSTAY. Right.

Mr. TURNER. So if you are not going to just look at those categories of exceptions and apply a standard of legal basis, what

would your test be for reasonably expected consequences?

Ms. PUSTAY. This is all back under how we did things under the

Janet Reno memo.

Mr. TURNER. Good.

Ms. PUSTAY. As a practical matter, how that applied, at the beginning of your question you mentioned national security interests

and personal interests, which are obviously very strong interests.

Those are actually two areas where agencies are not, in fact, legally free to make a discretionary release. This whole discussion we

are having here is about making discretionary releases, so releases

despite the fact that an exemption applies. But in the area of national security, personal privacy, in certain situations for business

proprietary information we have other statutes that provide protection for the information. We have the Privacy Act. We obviously

have statutes that prohibit disclosure of classified information.

So an agency, because of the operation of other laws, is not free

to just release information about individuals or release information

that would violate national security. So what that meant as a practical matter was that the effect of the Reno discretionary disclosure

policy, it applied most directly to internal agency documents, documents that were subject to exemption two, which protects personnel or administrative matters, and exemption five, which protects

privileged matters within the agency. Those were the two areas

where there was room under the Reno directive to actually look at

a document and say OK, I am looking at this, I see this as an internal rule and procedure. It technically could fit exemption two, but

when I look at it, I really don’t think there is any harm in disclosure, and therefore I will release it. That is what the Reno position

or her policy was designed to promote.

Mr. TURNER. After September 11th in the categories you have described of discretionary disclosure, wouldn’t we have wanted a

more narrow view of what reasonably expected consequences might

be, because of the unknown factor that we were then wading into?

Ms. PUSTAY. Absolutely. Certainly all of us in the FOIA community looked at information in a new light after 9/11, and there certainly have been situations where agencies had to start, for the

first time, thinking about the impact of disclosure on a potential

terrorist, and we would be irresponsible if we didn’t think that

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way. So we have had certainly a renewed interest in typically exemption seven. The law enforcement exemptions have been used in

a new way because of new threats, new consequences from disclosure that were simply unforeseen before 9/11.

Mr. TURNER. Thank you. Thank you, Mr. Chairman.

Mr. CLAY. Thank you, Mr. Turner.

Ms. Pustay, FOIA requestors have argued that requests involving cooperation among agencies are some of the most problematic

to resolve and often lead to the longest delays.

Ms. PUSTAY. Yes.

Mr. CLAY. Is DOJ taking any steps to improve interagency cooperation on FOIA requests?

Ms. PUSTAY. I mean, it is absolutely true, yet I don’t have an

easy answer to that. Let me just explain that when you have

records, especially if you have sensitive records that implicate national security concerns, it is important, and I would certainly always recommend to agencies that they coordinate and consult with

other interested agencies. Lots of times records that are responsive

to a FOIA request are gathered and collected at the agency site

that received the FOIA request, but if they implicate the interests

of other agencies they have to go to the other agency to get that

other agency’s views on disclosure of its information that appears

in the first agency’s files. It is just the nature of the fact that

records don’t exist in nice, discrete packages.

But obviously that involves time. I mean, it is absolutely correct,

the more you have to consult with other agencies the more time.

Mr. CLAY. Tell me, though, is DOJ doing anything to foster a cooperation among——

Ms. PUSTAY. Yes.

Mr. CLAY [continuing]. The different agencies who may hold a bit

of information on a particular case.

Ms. PUSTAY. Absolutely, because it is a necessary requirement of

FOIA processing, but obviously it is a very important area to have

improvement in. Within the Department of Justice, as part of the

Executive order implementation and part of our Executive order

duties, this is an area that we have focused on. Increasing communication between agencies, coming up with forms to exchange between agencies, within the Justice Department we have even been

able to set up protocols to get information more quickly or to review information offsite. There are different things that agencies

can to do help speed the process up, and we definitely are working

on those, and it part of the EO implementation.

Mr. CLAY. Along those same lines, resources at agencies seem to

be a major barrier to maintaining and training FOIA personnel.

Has DOJ looked to improve FOIA training opportunities for FOIA

officers?

Ms. PUSTAY. We do lots of training within the Justice Department for across the agencies. I have to say our courses are usually

standing room only, sold out courses, so we do have a great demand for training. But just about nearly every month we have formal training programs, so it is something that we are very actively

involved in. And we also do individualized agency training sessions.

When a particular agency would like one of us to come onsite, we

go and train there. So it is absolutely a key part of what we do.

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Mr. CLAY. OK. Thank you for your response. Ms. Koontz, there

seems to be an inverse relationship between the number of FOIA

requests made and the number of cases backlogged across the Government. Why is this?

Ms. KOONTZ. I think you are referring to some of the phenomenon that we talked about earlier is that in some agencies they receive many, many FOIA requests, and these are, in many cases,

also privacy requests. They are requests for people for their own

record, or they are an authorization for a third party to obtain

their record. These in many cases are easily fulfilled, and they are

not the sort of kind of—you know, in some cases I think the median days is one on some of these requests. These are not the kind

of cases that lead to a backlog.

Mr. CLAY. So the backlogs come when there are restrictions on

FOIA and exemptions on what kind of information that you can release?

Ms. KOONTZ. We haven’t done a study looking in a detailed way

at individual FOIA requests, but what the agencies tell us is that

oftentimes we are talking about cases that may involve tens of

thousands of pages of responsive records. It may involve going to

other agencies through the referrals and through consultations.

You know, it may involve the difficulty just of having to search

agency wide for responsive records, and in some cases agencies,

frankly, do not have the kind of records management systems that

facilitate the quick identification of responsive records. There is a

variety of reasons that agencies have given us for why some of

these take longer.

Mr. CLAY. Thank you so much for your response.

Mr. Hodes, did you want to participate in a second round of questions?

Mr. HODES. I would. Thank you, Mr. Chairman.

Mr. CLAY. Please proceed.

Mr. HODES. Ms. Pustay, I understand from your testimony that

DOJ submitted its report on January 19th, which was 2 weeks in

advance of the deadline.

Ms. PUSTAY. Yes. I am very proud of that.

Mr. HODES. I understand that. And I note that the Justice Department’s report indicates that it stopped working on and reporting on its Executive order compliance on January 9th. You had 3

more weeks before the cutoff. Why did you choose to stop then?

Ms. PUSTAY. Obviously, we didn’t stop our work on our implementation activities. When we took what I felt was a very positive

step to get our report up early, we knew that we were cutting ourselves short in terms of time for finishing our implementation. But

to my mind the value of having it up and posted, not only finished,

but posted on the internet as a model was just so important that

I wanted to do it, and we have been very pleased with the fact that

I think it really did have a very good impact on other agencies.

Mr. HODES. I was surprised to see in the DOJ’s report of its own

compliance that there were more than two dozen deficiencies, including eight in the FBI, alone. Why were there so many deficiencies in the DOJ’s report? And why didn’t you take the time

after January 9th to do something about DOJ’s own deficiencies?

78

Ms. PUSTAY. Well, first of all, the DOJ has a tremendous—I am

very proud of DOJ’s annual report. We have, I think, tremendous

successes that are delineated in our annual report across a wide

range of components. There are deficiencies with some of our components, and I think that is just to be expected. The FBI, in particular, for instance, had a huge move of all their FOIA operation,

which is hundreds of people. They moved to Winchester, VA, I

think. The logistics of moving that whole shop had a huge ripple

effect on their ability to carry out some of the goals that they had

set for themselves. That has absolutely nothing to do with the fact

that we reported out their successes and their deficiencies early.

They would not have been able to cure the effect of moving to Winchester in 2 weeks. Really, one does not have any relation to the

other.

Mr. HODES. I want to return briefly to the question of the impact

of the Ashcroft memorandum.

Ms. PUSTAY. OK.

Mr. HODES. I am looking at a letter dated February 8, 2007, from

James Kovacks, attorney in charge of the civil division.

Ms. PUSTAY. Civil division.

Mr. HODES. He is replying to a fellow named Mr. Hammet, who

on January 30, 2007, under FOIA requested records of the civil division relating to the 2006 revision of the DOJ guide to the Freedom of Information Act.

Ms. PUSTAY. OK.

Mr. HODES. And he sought expedited processing for that request.

He wanted a copy of the guide. This fellow, Mr. Kovacks, wrote

back and said that there was no urgency to inform the public about

an actual or alleged Federal Government activity, and the decision

was based on the fact that there have been periodic revisions to the

guide and there is no evidence that the public is concerned in any

way about the 2006 revisions. So he was denying Mr. Hammet access to this guide; is that correct?

Ms. PUSTAY. I don’t know if it is correct. I haven’t seen the letter.

Mr. HODES. I will be happy to submit that to you.

Ms. PUSTAY. That is fine.

Mr. HODES. My question is: does this have anything to do with

the Ashcroft memorandum? Is this the kind of thing that the

Ashcroft memorandum has produced in terms of the way DOJ is

responding to FOIA requests?

Ms. PUSTAY. No. Again, it is apples and oranges. What you are

reading to me there is a request for expedited processing of a request, and a denial of that request for expedited processing. Expedited processing is a whole separate part of the Freedom of Information Act that is not at all addressed in the Ashcroft memorandum, and expedited processing is—in the FOIA, itself, there are

provisions for certain requestors and certain circumstances to jump

to the head of the line to get their requests processed earlier than

anyone else. But in order to go to the head of the line you have

to meet strict requirements, because obviously anybody that gets

bumped to the front of the line disadvantages all the other requestors who are patiently waiting.

So what you are reading to me there is actually a request for expedited processing and a decision by the civil division that the

79

standard for expedited processing wasn’t met. The Ashcroft memorandum has absolutely nothing to do with that.

Mr. HODES. Thank you. Mr. Chairman, I would submit this for

the record.

Mr. CLAY. Without objection.

Mr. HODES. Thank you, Mr. Chairman.

I yield back.

Mr. CLAY. Thank you.

Let me also ask, are there any further questions for this panel?

Mr. TURNER. Mr. Chairman, I would just like to state how impressed I am with both of them and their answers and their responses, because clearly we have all agreed in our questions and

in our comments about the need for protection of governmental interests and private interests, but also of the need for release of this

information that should be properly released. Clearly, both of them

are giving us guidance and information and are committed to the

types of policy that certainly everyone on this committee has been

espousing.

Thank you.

Mr. CLAY. Thank you.

If either witness or both have a closing comment to make, feel

free.

[No response.]

Mr. CLAY. If not, that will conclude the testimony for panel one.

I thank you Ms. Koontz and thank you Ms. Pustay for your testimony. You may be excused.

I would like to now invite our second panel of witnesses to come

forward, please.

Our second panel will consist of three witnesses.

Our first witness is Mr. Clark Hoyt, who serves as a consultant

to McClatchy Newspapers. For the prior 38 years he was reporter,

editor, and executive with Knight Ridder, the Nation’s second-largest newspaper company, until its acquisition by McClatchy. In 1973

he shared the Pulitzer Prize for national reporting with Robert S.

Boy for their coverage of Democratic Vice Presidential Nominee

Thomas Eagleton, another Missourian.

Our second witness will be Ms. Caroline Fredrickson, who serves

as the director of the Washington Legislative Office. Caroline

Fredrickson is the director of the ACLU Washington Legislative Office. As director, Ms. Fredrickson leads all Federal lobbying for the

national ACLU, the Nation’s oldest and largest civil liberties organization. She is also the organization’s top lobbyist and supervises

the 50-person Washington legislative team in promoting ACLU priorities in Congress, the White House, and Federal agencies.

Our third witness is Meredith Fuchs, who serves as the general

counsel to the National Security Archive at George Washington

University. There she oversees Freedom of Information Act and

anti-secrecy litigation, advocates open government, and frequently

lectures on access to Government information. She is the author of

‘‘Judging Secrets: the Role Courts Should Play in Preventing Unnecessary Secrecy and Greasing the Wheels of Justice, Independent

Experts of National Security Cases.’’

It is the policy of the Committee on Oversight and Government

Reform to swear in all witnesses before they testify.

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[Witnesses sworn.]

Mr. CLAY. Let the record show that they have answered in the

affirmative.

As with panel one, I asked that each witness now give a brief

summary of their testimony and to keep the summary under 5

minutes in duration. Bear in mind your complete written statement will be included in the hearing record.

Mr. Hoyt, let’s begin with you.

STATEMENTS OF CLARK HOYT, MCCLATCHY NEWSPAPERS, ON

BEHALF OF THE SUNSHINE IN GOVERNMENT INITIATIVE;

CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION; AND

MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY ARCHIVE AT GEORGE WASHINGTON UNIVERSITY

STATEMENT OF CLARK HOYT

Mr. HOYT. Mr. Chairman, Ranking Member Turner, and members of the subcommittee, I am honored to appear before you today

to speak in support of efforts to strengthen the Federal Freedom

of Information Act. I am testifying on behalf of the Sunshine in

Government Initiative, a coalition of 10 media groups committed to

promoting policies that ensure the Government is accessible, accountable, and open.

I believe the Freedom of Information Act is one of the most important tools available to journalists and citizens, alike, to monitor

the performance of our Government, but it has flaws that I hope

this Congress in its wisdom will address. Because of FOIA, Chris

Adams of McClatchy Newspapers was able to report this past

weekend that the Department of Veterans Affairs is ill-equipped to

handle the wave of returning Iraq war veterans suffering from post

traumatic stress syndrome.

I would like to tell you about an earlier 2005 series of stories on

the VA by Knight Ridder written by Chris and Allison Young. I

think you will see that their experience gathering public records

provides strong evidence that FOIA needs to be strengthened.

Early in 2004 Chris and Allison undertook a comprehensive inquiry

into how the VA determines who gets disability benefits and who

doesn’t. In February, Chris asked the VA what kinds of relevant

data bases the Department maintained. The VA stonewalled. It

wouldn’t give him the record lay out for different data bases. In

March a public affairs officer told Chris that the Department didn’t

want to tell him how it maintained records because officials feared

it was ‘‘Leading to a big FOIA.’’

Although FOIA explicitly says that individuals requesting public

documents don’t have to say why they want them, the public affairs officer probed to find out what the stories would say. Officials

at the Veterans Benefits Administration ‘‘Certainly would like to

know why the information is needed,’’ he said in an e-mail.

In March Chris filed our first FOIA request asking, in effect, for

the records of what records the VBA maintained. There was no response. We appealed. No response.

At one point Chris was invited to view a version of the record

layout, but as he was leaving VA officials demanded his notes so

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other officials could clear them. I believe the demand was not supported in any way by law, but Chris complied. The notes were

faxed to him the next day. Eventually, Chris learned on his own

what records he needed for the project, and on April 15th he filed

a FOIA request. Here, from Chris’ notes, is what happened next.

Please keep in mind the 20-working-day statutory deadline for an

agency response to a FOIA request.

May 6, a VBA FOIA officer told Chris the request was ‘‘Being

worked.’’ On June 4th, June 16th, July 19th, and August 6th VA

officials said the request, in the same words, ‘‘Were still being

worked.’’ August 8th, ‘‘They are still working on them. It is being

worked, not like it is sitting there.’’ September 3rd, a VA official

admitted they did not get to it 4 months ago. Part of it was the

queue, part of it was the whole general counsel, and part of it was

miscommunication.

At one point the VA demanded from us $41,000 to copy the

records of 11,000 service officers who help veterans file their

claims. We had asked for two files.

Finally, after numerous unanswered FOIA requests and six administrative appeals, we filed a lawsuit in November. In December

the long-sought records began flowing. By February 2005 we had

most of what we had requested. In March the stories ran. The stories documented how veterans nationwide are being short-changed

by a benefit system prone to long delays, wrongful denials, and inconsistent rulings. In addition to seven journalism awards and the

satisfaction of knowing we did our duty by persevering in the quest

to examine the performance of a Federal agency that affects millions of Americans, Knight Ridder got legal bills totaling more than

$100,000.

Because the VA surrendered the data bases and other records before our suit went to trial, we were prevented from recovering legal

fees because of the way the appellate court that governs Washington, DC, interprets the Supreme Court’s decision in Buckhannon

Board and Care Home, Inc. v. West Virginia Department of Health

and Human Resources.

How do I believe FOIA should be strengthened? Based on our experience, I would like to suggest four broad changes.

First, create a FOIA ombudsman within Federal agencies, a

champion for FOIA training and compliance, a place where individuals seeking to exercise their rights under FOIA can go for help,

short of filing a lawsuit.

Second, eliminate what Senator John Cornyn has correctly called

‘‘the Buckhannon tax.’’ Make it clear that plaintiffs forced to sue

to get public records are entitled to get legal fees, even though the

defendant agency throws in the towel before a court decision.

Third, make FOIA’s deadlines meaningful. If the law says a request must have a response within 20 working days, put teeth in

it with real sanctions for agencies that don’t comply.

Fourth, the law would work better if every FOIA request was assigned a tracking number. Any individual should be able to check

at any time on the status of a request and get an accurate account

of the progress. Combined with more meaningful reporting of each

agency’s overall FOIA performance, this would help achieve greater

accountability.

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Mr. Chairman, in closing I request that an in-depth analysis of

FOIA implementation prepared by the Coalition of Journalists for

Open Government titled ‘‘The Waiting Game: FOIA Performance

Hits New Lows,’’ be entered into the record of this hearing.

Thank you.

Mr. CLAY. Without objection, so ordered.

[The prepared statement of Mr. Hoyt follows:]

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Mr. CLAY. Thank you for your testimony.

Ms. Fredrickson, please proceed.

STATEMENT OF CAROLINE FREDRICKSON

Ms. FREDRICKSON. Good afternoon, Subcommittee Chairman

Clay, Ranking Member Turner, and members of the subcommittee.

Thank you for the opportunity to testify today on behalf of the

American Civil Liberties Union, its 560,000 members, our activists,

and 53 affiliates nationwide about an issue of critical importance,

the Freedom of Information Act.

FOIA gives ordinary people the power to hold the Governors accountable to the governed. We like to think of FOIA as democracy’s

x-ray because it shows us the inner workings of Government so we

can identify the waste, fraud, abuse, and corruption that weaken

our Nation. But that x-ray machine has grown old and needs a

tune-up. Backlogs clog the system and cause expensive, unnecessary delays.

Under the Open America Doctrine, agencies can use their backlog as an excuse for failing to meet statutory deadlines for new

FOIA requests; however, the real problem is the current administration is intentionally and improperly shielding itself from view,

using national security as a barrier to prevent Americans from seeing what is happening inside our Government.

FOIA is the best tool that Congress has created to expose Government abuse, and through exposure to help end those abuses.

ACLU litigators are now using that power with great effect to

bring to light illegal and improper methods pursued by the Bush

administration in its global war on terror.

The ACLU recognizes that increased oversight is even more important when people are afraid that national security is being

threatened. For example, ACLU’s FOIA requests have revealed

Pentagon and FBI spying programs targeting peaceful protest

groups in the United States such as the American Friends Service

Committee, Veterans for Peace, United for Peace and Justice,

Greenpeace, and the Catholic Workers Group. This is wasteful and

dangerous. Every hour the FBI spends infiltrating a Quaker peace

group is one less hour it can spend finding the next Mohammed

Atta.

Another ACLU FOIA request demanded information about detainees held by the United States overseas. It exposed evidence of

interrogation techniques in U.S. detention facilities in Guantanamo

Bay, Cuba, Afghanistan, and Iraq that are widely regarded as torture under international law.

Once it came to light through our FOIA requests and other

sources, this abuse triggered a national soul searching about abusive interrogation techniques used in the fight against terrorism.

These two examples demonstrate how the public disclosure of

Government misconduct through FOIA can serve to curb such improper Government activities. The activities waste precious resources and do irreparable harm to our core values and the image

of the U.S. Government, particularly in the international community, where cooperation against trans-national terrorism is an essential component of our national security strategy.

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I would like to highlight a few of the problems the ACLU has

seen in its FOIA litigation. In torture litigation the ACLU filed the

FOIA request for information on detainees in October 2003, 6

months before the Abu Ghraib photos were leaked to the media,

but the agencies released virtually nothing until the court required

them to begin processing the documents in August 2004.

Who knows what abuse might have been prevented had the Government been more forthcoming when the FOIA request was first

filed? We are still pressing for the release of the documents, themselves, which the CIA continues to withhold.

NSA warrantless wiretapping—the Government made astonishing secrecy claims regarding NSA warrantless wiretapping. It took

the extraordinary position that even the number of documents and

the total number of pages at issue was classified. The Government

even argued that document review by a special magistrate would

violate the separation of powers.

U.S.A. Patriot Act—the Justice Department at first refused to release statistics to the ACLU regarding the FBI’s use of section 215

authorities and national security letters, but those statistics were

released by the administration months alter in an attempt to head

off congressional efforts to require such disclosure. Releasing that

information had no adverse effect on national security. In other

words, when the ACLU sought the information through FOIA and

it was inconvenient politically for the Government to disclose it, it

was withheld on national security grounds. When openness became

politically expedient, that information was released.

The common threads running through these examples are the

administration’s disdain for the principles of open government that

underscore the Freedom of Information Act and its refusal to obey

and faithfully execute the laws duly passed by Congress.

I see I am running out of time, so I will not go into a discussion

of the Ashcroft memo, which has already been discussed by the

previous panel, but I do want to point out a couple of things. We

have put up a couple of exhibits here.

We do agree that governments can and should withhold truly secret information that is essential to national security, but it appears time and time again that information is, instead, withheld to

hide potentially embarrassing information or misconduct.

Two examples are relevant to our torture FOIA case. You can see

in exhibit A a heavily redacted e-mail released in response to the

ACLU’s torture FOIA request. Senator Carl Levin requested an

unredacted version of the e-mails for use in Senate confirmation

hearings and received a less-redacted version, which you can see in

exhibit B. The information that was not redacted in the second

says simply, quoting an FBI person, it says, ‘‘I will have to do some

digging into old files to see if we have specifically told our personnel in writing to not deviate from bureau policy.’’ That was obviously redacted simply to avoid embarrassing the FBI. And the

other piece that is redacted is the name of the person who was up

for confirmation in front of Senator Levin’s committee.

The second example of FOIA abuse is more troubling, because it

goes to the heart of how national security classification designations have been used to hide misconduct. As Steven Aftergood, senior researcher at the Federation of American Scientists, pointed out

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in testimony before the Subcommittee on National Security,

Emerging Threats, and International Relations in August 2004, the

Department of Defense improperly classified the report written by

Major General Antonio Taguba detailing evidence of torture at the

Abu Ghraib prison in Iraq. The report was classified secret, in violation of Executive Order 12958, which states, ‘‘In no case shall information be classified to conceal violations of the law.’’

In closing, I would join my colleague here in recommending the

changes to FOIA that he has already stated and that are contained

in the Open Government Act. There are some very clear ways to

improve the functioning of FOIA, and we look forward to working

with the committee to do so.

Thank you very much.

[The prepared statement of Mr. Romero follows:]

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Mr. CLAY. Thank you so much for your testimony, Ms.

Fredrickson.

Our next witness will be Ms. Fuchs. Proceed.

STATEMENT OF MEREDITH FUCHS

Ms. FUCHS. Thank you. Chairman Clay, Ranking Member Turner, members of the subcommittee, I am honored to be here with

you today and to talk about the Freedom of Information Act. I am

testifying for the National Security Archive, where I am general

counsel. We are a nonprofit research institute, and we publish a

wide range of publications in print and electronic form about national security, intelligence policy, foreign policy, and the like. We

have been recognized many times for our journalistic work, including receiving a 2005 Emmy Award for outstanding news research.

In my 5 years at the Archive, I have overseen five audits of Federal Government FOIA processing, including two that tried to identify the oldest pending request in the Federal Government. I think

I can say that I am an expert on what the FOIA requestor experiences when they make FOIA requests. My organization has filed

30,000 FOIA requests in our 20 years of existence, but there are

25 of us working there filing FOIA requests. Everything that we

request we publish, and it is all available and used by academics,

journalists, and the public.

Let me briefly touch on the good news. I attached to my testimony a list of 100-some-odd stories. Take a look at them. They are

stories that show you the wide range of issues that people use

FOIA to cover. That is journalists, public interest organizations,

and the public. It shows you how people are able to find out about

important things that matter to the American public, that matter

to our health, our safety, our welfare, and the like. I am not going

to focus on that. You have that in front of you.

Now let me tell you the bad news. Despite the fact that some of

us, people from groups like ours that have the capacity and the resources to try to fight for our records, the FOIA system is really

plagued by delay and inefficiency and, frankly, by outright obstruction by some of the agencies. There are many people who we work

with who we respect at Federal agencies dealing with FOIA, and

I serve on the board of the American Society of Access Professionals, which is an organization of FOIA professionals within the

Government, but there are many offices that do not live up to the

standards of the law, nor do they live up to our expectations as

American taxpayers.

As you know, the FOIA requires agencies to process requests

within 20 business days. I mentioned our 10 oldest reports. The

first one, which was published in 2003, found requests as old as 16

years—a lot longer than 20 business days. Our second audit, which

was published in 2005, found requests as old as 17 years, in fact,

many of the same ones that we had identified in 2003. Which was

the oldest? It was a 1989 request by a graduate student at the University of Southern California asking the Defense Department for

records on the U.S. Freedom of Navigation program. Well, William

Aceves, that graduate student, is now a full professor, and in a moment I will give you some good news about his request.

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Anyway, in January we began our latest 10 oldest audit, and we

have already found that there are requests older than 10 years still

pending in the Federal Government. That is despite the Executive

order that you heard about earlier.

How can you address delays? Well, better reporting is an essential part of the package. Ms. Koontz talked a little bit about some

of the issues with the reports. I wholeheartedly agree with her. We

have taken a good look at those reports, and, just to give you an

example of how misleading a median can be, Professor Aceves’ 17-

year-old FOIA request, well, if you had looked at DOD’s annual

FOIA report for fiscal year 2005 you would have read that DOD’s

median processing time in that year was 151⁄2 business days for

simple requests and 85 business days for complex requests. Well,

Professor Aceves had been pending for over 4,000 business days. So

the data is simply misleading, not that the agencies are

misreporting it, although I will tell you that, in talking to agencies,

we have often heard that when they got multiple components that

median is a median of the medians, so it is not even a median of

all the response times.

I won’t talk about the Veterans Administration. Ms. Koontz

touched on that. But I would agree that the aggregating of Privacy

Act requests and of FOIA request data is misleading and makes

the Veterans Administration look like it gets the most requests and

does the best job processing them; whereas, in fact, as you heard

from Mr. Hoyt’s testimony—and I will second, based on our experience—the VA is one of the most poorly functioning FOIA offices in

the Government.

So now, to get to the good news, Professor Aceves’ highly publicized FOIA request has now been processed, and DOD’s FOIA

staff wrote ‘‘An Ode to Freedom from Freedom of Navigation’’ to

celebrate that they have finally gotten their oldest processed.

What about tracking? Can tracking help? I will just say, in my

written testimony I have some more details about reporting that I

would recommend, but I will turn to tracking.

I think tracking is a critical issue. We brought a lawsuit against

the Air Force after we found out that their 10 oldest were all our

own requests, and they were old, 15 years or so. We found out that

they have no system-wide tracking, that many requests were simply thrown out or lost, and recently, when we tried to—well, we

went to court and a Federal judge found they had a pattern and

practice of not processing FOIAs. Just getting them to identify

where the FOIAs were in their system has taken months. And

when we recently tried to file a FOIA request with the Air Force

Material Command, we found a fax number on the Air Force Web

site, which is where we sent our FOIA request. That fax number

actually was the telephone number for a patient room in a hospital

maternity and delivery ward. We searched all over the Air Force

Web site, couldn’t find any kind of fax number. We finally got another Air Force office to forward our request to Air Force Material

Command. They told us they would then forward our request to

every other component of Air Force Material Command, and that

they don’t keep track of what happens after it gets out of their office or, indeed, where it goes. So with a situation like that it is very

hard for a FOIA requestor to try to press for a response.

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And then, if it is not hard enough to deal with all those kind of

administrative issues, once you do decide to go court——

Mr. CLAY. Ms. Fuchs, your time has expired.

Ms. FUCHS. I will finish up.

Mr. CLAY. Go ahead and close, please.

Ms. FUCHS. I just want to make one more point, if I could.

Once you do decide to go to court, the Government plays games.

We won a lawsuit in 1990 against the CIA. For 15 years the CIA

followed the court’s decision. Suddenly, in October 2005 they decided to change their policy. We filed a lawsuit. They did nothing

in response to our complaint. We filed summary judgment motion.

The night that we filed our summary judgment motion, at 6:30,

after working hours had ended on a Friday night, they send a letter changing their policy.

Next thing we expect them to argue is that we don’t deserve attorney’s fees.

[The prepared statement of Ms. Fuchs follows:]

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Mr. CLAY. Thank you so much for that testimony, Ms. Fuchs.

Ms. FUCHS. Thank you.

Mr. CLAY. Since you finished up, we are going to start with you.

Ms. FUCHS. OK.

Mr. CLAY. So you can express a little bit more.

Let me share with you, I have a very close friend who is a public

information officer back in St. Louis who takes the FOIA requests.

They work for a local government and they don’t have a person assigned to fill these requests. I bet you run into that quite often

with a lot of local governments who may not be as well financed.

And this is for you, but anybody else on this panel can try to answer this. How do you balance that? And what do you do about limited resources among local governments who don’t have enough

people? This person has even expressed to me that newspapers,

journalists come and request this information and they never come

and pick it up. I am sure you all have dealt with smaller governments like that. What do you think is a good balance there? How

should we handle that?

Ms. FUCHS. I think resources is definitely one of the main concerns that the FOIA offices have, and I think it is a legitimate concern, but to simply say we are not going to do our job because we

don’t have resources doesn’t seem acceptable.

Some of the agencies that we have the biggest delays in, they

still do their job wonderfully. I mean, I would say the State Department and DOD have extreme delays, and yet we find that the people at those agencies are professional and are trying to do it right.

What concerns us is that there are agencies who don’t try at all,

and there is nothing in the law to push those agencies to do a better job.

Mr. CLAY. OK.

Ms. FUCHS. That is why we think it is necessary for Congress to

take some action.

Mr. CLAY. OK. Mr. Hoyt or Ms. Fredrickson, any response?

Mr. HOYT. Well, Mr. Chairman, most of my history has been

with the Federal FOIA, not at the local level.

Mr. CLAY. OK.

Mr. HOYT. But it is my understanding, and some observation,

that actually State and local governments do a far better job with

FOIA with the State laws about freedom of information than the

Federal Government does, even with their limited resources.

Mr. CLAY. That is probably accurate. Yes, ma’am, anything?

Ms. FREDRICKSON. I don’t really have anything to add there.

Mr. CLAY. Let me also go back to Ms. Fuchs and ask, do you find

that agencies have generally complied with the requirements of the

1996 e-FOIA law? This law went into effect more than 10 years

ago. Can you offer some examples of agencies that have not been

compliant with e-FOIA requirements, such as the requirement to

make repeatedly requested records available online?

Ms. FUCHS. Thank you for asking the question. We are actually

engaged in a big study right now about e-FOIA, and I hope to be

able to give you even more details at a future date.

I would say that, based on what we have looked at so far, there

is a wide disparity between agencies’ compliance with e-FOIA.

When we read the agencies’ FOIA improvement plans, there were

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some agencies that had not changed their regulations since 1996,

despite the enactment of e-FOIA. When you look at the agencies’

Web sites, many clearly do not include frequently requested

records.

Another problem with that is that the Justice Department has

said frequently requested records means a specific record which

has been requested three or more times. It is our view that agencies would serve themselves and the public better by looking at it

topically and saying the public is interested in the Abu Ghraib. We

are beginning to release them. Why don’t we put everything up

that we can put up so that all of the public can take a look at it

as soon as possible.

Mr. CLAY. Thank you.

Ms. FUCHS. We think that would help agencies.

Mr. CLAY. Thank you very much for that response.

Ms. Fredrickson, from your perspective does the awarding of attorney’s fees to a prevailing requestor provide an adequate incentive for agencies to be more responsive in their judgment?

Ms. FREDRICKSON. I think that is certainly one element that

would be very helpful in ensuring that the requests are processed

appropriately, but I think Congress should also look at some other

elements as have been laid out, are contained in the Open Government Act, and consider whether there should be additional penalties or agencies that impose excessive delays on the processing.

Mr. CLAY. OK. I think, Mr. Hoyt, did you mention the agency

ombudsman?

Mr. HOYT. Yes, sir.

Mr. CLAY. Yes. And then so do you think that would help foster

a better response time?

Mr. HOYT. Yes. I think if you created an ombudsman that had

independent stature and teeth, some authority to make things happen, it would be a way for requestors who were being denied proper

access to records to go somewhere without having to go to the expense and difficulty and time consuming process of filing a lawsuit

and prosecuting it that way.

Mr. CLAY. Thank you so much for your response.

Mr. Turner, do you have any questions?

Mr. TURNER. Yes. Thank you, Mr. Chairman.

Mr. Hoyt, I appreciate your comment about local government. I

served as mayor for city of Dayton two terms in Ohio, which in

Ohio is very liberal Freedom of Information Act process.

Mr. HOYT. I believe your Freedom of Information history goes all

the way back to the late 1700’s, in fact, sir.

Mr. TURNER. Luckily, I do not.

Mr. HOYT. Your State is one of the best.

Mr. TURNER. So your knowledge would exceed mine. However, I

would tell you that, coming from that background and also being

very supportive of it as a tool that no one in government can ever

say that by having a closed system in government we can assure

either efficiency or effectiveness. You have to have the ability for

those to review what government is doing in order for us to be able

to hold it accountable to make certain that it is performing. Any

closed organization or system, whether it be a business or government, is going to find inefficiency, ineffectiveness, or other perverVerDate 11-MAY-2000 10:36 Jul 16, 2008 Jkt 000000 PO 00000 Frm 00151 Fmt 6633 Sfmt 6633 C:\DOCS\43029.TXT KATIE PsN: KATIE
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sions of their goals and responsibilities, to the extent that they are

closed systems.

Having said that, and being an advocate for freedom of information, in fact, having spoken on it as a mayor in Turkey to advocate

for how it works for local government and how it can assist local

governments, there is a lot of the testimony that concerns me that

I hear of so-called advocacy groups for freedom of information because there is this underlying negativity that goes beyond just

what I just said, which is it is in all of our best interests for the

information to be out there.

So my first question for you is that you mentioned several recommendations in your testimony. Will you provide to this subcommittee a draft of recommendations from your coalition that the

committee can review that would be in the form of addressing what

some of the issues that you see are a problem?

Mr. HOYT. Yes, we will.

[The information referred to follows:]

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Mr. HOYT. It is my understanding that the coalition has worked

with this subcommittee before and would be glad to——

Mr. TURNER. I would love to see that.

Mr. HOYT. Yes.

Mr. TURNER. Ms. Fredrickson, to go back to my other comments,

partisan bickering is a tone in Washington, DC, that absolutely

drives me crazy, and your statements concerning the administration I think really diminish the overall substance of the academic

contribution that you can make to the issue of FOIA, so I have a

pretty straightforward question for you. Was there anything that

was done during the Clinton administration or the Carter administration with respect to withholding information that you thought

was inappropriate or improper?

Ms. FREDRICKSON. You know, I appreciate your question. We are

a nonpartisan organization, and we——

Mr. TURNER. Well, your comments didn’t sound nonpartisan.

That is why I ask you that question.

Ms. FREDRICKSON. Well, I think one of the roles of the Freedom

of Information Act and the role of Congress as an oversight body

is to ensure that our Government is kept to that straight and narrow, and, unfortunately, we have seen a lot of deviation from that

in the past many years.

Mr. TURNER. So your answer is that there is nothing you found

in those, the Clinton administration or the Carter administration?

Ms. FREDRICKSON. My answer is I have been with the ACLU only

in the past year and a half, and I was not there during the Clinton

and Carter administrations.

Mr. TURNER. Are you unaware of any things that occurred in the

Clinton and Carter——

Ms. FREDRICKSON. However, I am sure that we had many concerns about things that happened in the Clinton and Carter administration.

Mr. TURNER. Excellent.

Ms. FREDRICKSON. I would be happy to provide to the committee

any information about prior FOIA requests that we had.

Mr. TURNER. Thank you.

Ms. FREDRICKSON. But I can assure you that we did.

Mr. TURNER. You would serve your purposes in advocating on

this bill and on this subject matter to include those and not focus

on criticism of the administration.

Ms. Fuchs, obviously one of the issues that we have with FOIA

in both the policy substance of wanting to have this accountability,

because it serves us all—no one person can look up and down an

organization and ensure its quality or its performance by having

the broad Freedom of Information empower everyone to be able to

help the Government do that, but there are those that don’t acknowledge sometimes that what they are doing is a business, and

that the costs that the business is incurring as a result of their interests also result in profits to their operations. Can you speak a

minute about the issue of those that might be looking for fee abatement or attorney fee waivers where, in fact, their processes are

those that result in profits to their organization, and not, as Ms.

Fredrickson contended, her being a nonprofit?

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Ms. FUCHS. Well, my understanding is that the largest users of

the Freedom of Information Act are commercial interests, and they

do pay fees for search review and for duplication of their FOIA requests, so they repay the Government for the cost of that.

The other categories of FOIA requestors, you have a large category of private individuals, the people who make the requests to

the VA for their veterans records or to the Social Security Administration for their Social Security records. Those requests are handled at a very low cost. They are entitled to 2 hours of free search

time, 100 pages free. They know the name of the person they are

giving it to. They are giving it to that person. There is no privacy

issues. They don’t incur very high costs.

The other two categories are basically news media and the education and scientific institutions. Now, Congress, when it enacted

the fee provisions, made the determination that news media are

not commercial requestors, and the reason Congress made that determination is because the news media serve the main core purpose

of FOIA, because what they do is they disseminate the information

to the public and give the public the information they need to

know. So there are costs that are incurred, and those costs are not

generally charged to the news media, with the exception of duplication fees.

Mr. TURNER. Mr. Chairman, I want to thank you again for holding this hearing, because, as I stated, this is a very important act,

and it is very important because it ensures performance of Government on all levels on behalf of all of us. I know that in a hearing

like this that one of the things that we have to look at are the

problems with it, but I do think that before we just move on from

looking at the problems we do have to acknowledge that I am sure

that there are information requests that show where there is no

conspiracy, where there are people that are doing a really good job,

and that there are people every day who show up in the Government and execute their duties in a way that makes us all proud,

even though we look at the problems today.

Mr. CLAY. Thank you, Mr. Turner. We know that the law has

been in existence since 1966, and I am sure they have had to iron

out some difficulties with the law over the years, and before either

one of us got here.

Mr. TURNER. Absolutely.

Mr. CLAY. I will turn now to Mr. Hodes.

You are recognized for 5 minutes.

Mr. HODES. Thank you, Mr. Chairman.

Ms. Fredrickson, thank you for your testimony, which I found

very enlightening. I would say that I don’t believe that open government is a partisan issue. It is an American issue. Democracy requires open government. It doesn’t matter whether or not there is

a Republican administration or a Democratic administration, so I

appreciate the perspective of your organization on this.

In her testimony, which I know you were present for, Ms. Pustay

from DOJ told us that the Ashcroft memo ‘‘changed the tone’’ but

didn’t narrow the application of any of the standards of FOIA. Do

you agree? And, if not, why not?

Ms. FREDRICKSON. Well, I think there is actually evidence to the

contrary. I believe GAO, itself, did a study that reviewed with

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FOIA officers throughout the Government whether, in fact, the

Ashcroft memo had affected their interpretation of how to comply

with FOIA. I believe that there was a large percentage of those

FOIA officers—and I think Meredith probably has the number in

her head, but I think it was a third of the FOIA officers said yes,

it would actually make them much less inclined to provide the information to the person requesting. So there has definitely been an

impact.

Mr. HODES. Do you believe that Congress should take steps to reverse the impact of the Ashcroft memo on the way DOJ is dealing

with FOIA?

Ms. FREDRICKSON. Yes, we certainly do. The Reno Doctrine that

preceded the Ashcroft memo, with a presumption toward disclosure, we think is much more consonant with what congressional intent was behind the Freedom of Information Act. There are exemptions already stated in FOIA that gives the Government the opportunity to protect important information, and there shouldn’t be yet

another step beyond that to which the Government can go to keep

critical information out of the hands of the public.

Mr. HODES. To the panel, in general, I ask the following. I note

that both the suggestion for a FOIA ombudsman and suggestion for

tracking as critical components of the suggested reforms. It strikes

me that if UPS can track packages, we should be able to track

FOIA requests. Tell me, educate me, did anything in the 1996 eFOIA provisions provide for a central repository and central tracking of FOIA requests by date, so that there was one place that we

could go to track time, compliance, things like that?

Ms. FUCHS. No, there is nothing that requires a central tracking

in the FOIA right now. Most agencies maintain FOIA logs. The

agencies that have sophisticated logs have data bases and they are

able to see where the FOIA request is. Some agencies have paper

logs and you can request FOIA logs from agencies and see them

filled out, date, name, etc. Some agencies have no logs.

Mr. HODES. So there is no single standard that applies across the

Government as to how logs should be kept, how they should be

maintained, how the data bases should be maintained for FOIA requests?

Ms. FUCHS. No.

Mr. HODES. Would that be helpful?

Mr. HOYT. Yes.

Ms. FUCHS. Yes.

Mr. HODES. Why would it be helpful?

Mr. HOYT. It would help open up the process, make the process

more transparent so that two things: people with FOIA requests

would be able to tell where they are, where they are moving

through the process, and it puts heat on the people processing to,

if they can hide behind a veil of I don’t know where it is, it is much

harder for you to get results.

Mr. HODES. Do you think entitlement to legal fees is enough of

a sanction?

Mr. HOYT. No.

Mr. HODES. What else ought to be done?

Mr. HOYT. Well, in the Open Government Act that was reported

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tained another type of sanction, which is removing some of the exemptions, not privacy or national security, but some of the exemptions that an agency or department could claim as a reason for

keeping something secret if it failed to meet the deadline.

Ms. FUCHS. The other thing is that the attorneys fees is not really a sanction. I mean, it is a private attorney general provision. It

is a way of making the public have the ability to enforce the law

against the Federal Government, which will not otherwise enforce

the law against itself. It is not a sanction. And for the average citizen who is not going to bring a lawsuit, it doesn’t help them at all.

It helps potentially groups like ours who can get lawyers to represent us, but I understand that most attorneys who are approached to do a FOIA case will tell your average member of the

public that they have to put a pretty big retainer on the table to

get it done.

Ms. FREDRICKSON. I think there is one other issue, which is more

accountability inside the Government, the people who are responsible in the Government for responding to FOIA requests. There

needs to be some kind of aspect of their personnel review or something about their jobs that makes them accountable for processing

these requests.

Mr. HODES. Thank you very much.

Thank you, Mr. Chairman.

Mr. CLAY. I thank you. Thank you for your line of questioning.

Mr. Yarmuth of Kentucky, welcome to the subcommittee.

Mr. YARMUTH. Thank you, Mr. Chairman. It is a pleasure to be

here.

Mr. Hoyt, I read in your testimony your background, and you

and I come to this spot from fairly similar backgrounds, because I

was a journalist, too, before getting in this field.

Mr. HOYT. I understand.

Mr. YARMUTH. One of the things that concerns me in listening

is we obviously face two issues here, it seems to me. One is a

logistical one, and some of the suggestions that you have made, Mr.

Hoyt, in your testimony deal with logistical sides of it. We also

have the issue of recalcitrance for whatever reason it may be,

whether it is personal embarrassment, whether it is legitimate national security, whether it is political, or whatever. All I have heard

so far is a discussion of how we get at this information through

some kind of adversarial process, and adversarial processes—I

mean, in this case, some of these cases it is definitely adversarial.

But has there been any discussion among those of you who study

this subject on a regular basis for some kind of way to get to resolve these disputes outside of litigation or some other thing that

results in a great deal of expense and time-consuming activity?

Mr. HOYT. Well, Congressman, I think that is where the ombudsman provision particularly could come into play. If you had an ombudsman who had clout and some stature of independence within

a department so that office, that individual is not subject to some

of the political pressures that I think come into play sometimes

with these decisions, you could keep it from becoming the formally

adversarial process that you have to go into when you file a lawsuit.

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Mr. YARMUTH. Has there been any discussion of something—and

it probably is a nasty word to bring up, but FISA or some kind of

analogous situation where there was a panel empowered to hear

some of these cases, just throwing it out?

Ms. FUCHS. Well, there is, in the classification realm, there is a

panel that deals with classification decisions that go through mandatory declassification review. There hasn’t been much discussion

of that in the FOIA situation, and there are a couple of reasons for

that. Each agency’s records can be very different, and different

issues can be raised by those records and they have different exemptions that they tend to rely on, so one panel—it would be hard

for a small panel to have the expertise to handle all of those issues.

One of the things that we would advocate for would be greater

independence in the administrative appeal process, which we find

works very well at some agencies, like the State Department,

where they have different people look at the administrative appeal

and look at the initial FOIA request, whereas at other agencies it

is the exact same people, and so, you know, it is not surprising

they don’t change their mind in administrative appeal.

Ms. FREDRICKSON. And I do think that part of the accountability

that we are talking about that could be built into FOIA would actually help this if there was more of a presumption toward disclosure.

I think you would have a whole lot less litigation.

Mr. YARMUTH. Where in this whole equation does this committee

and this Congress enter in? It seems to me that obviously when

you have one party in control of the executive branch, one party in

control of the Congress, whichever party it may be, the availability

or the usefulness of an oversight committee like this is minimized.

It is going to be much more effective when there are differing parties. But how can the Congress better exercise its role?

Ms. FUCHS. Well, I think that oversight is a key part of it. Agencies should be asked to explain why they are not satisfying what

the law requires of them. If the Congress were to require better reporting, it would make it possible for you to do that.

I will say that in 1974 when FOIA was strengthened significantly it was over President Ford’s veto, so Congress has power, despite the fact that the administration may be headed by another

party.

But I think the other thing just to remember is, even though

President Bush issued an Executive order which has been helpful

in many ways, we have started to look at the compliance reports

from the Executive order, from the agencies, and many of them

have not met their goals. In fact, some of them, what they have

done is simply postpone their goals for another year. There is nothing, there is no recourse in that they haven’t met their goals. So

when you come to that point when they are not able to do it themselves, that is when Congress can step in.

Mr. YARMUTH. So I take it that some kind of regular reporting

requirement to Congress of performance by all the agencies on this

matter, rather than just waiting for a piece of legislation and hearings, would be something you might support?

Ms. FUCHS. Yes.

Mr. HOYT. But we would support legislation. If I am not misquoting the chairman from at the outset of this hearing, you talked

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about the Open Government Act as a starting point. I hope that

you would take up the Open Government Act again. I think there

are some things about it that need improvement, particularly in

the ombudsman feature. But I hope that you would use that piece

of legislation.

By the way, I couldn’t agree more with Congressman Hodes that

this is not a partisan issue. It is not an ideological issue. Some of

the most eloquent statements I have heard about freedom of information have come from people like Senator Cornyn, who is a real

champion of this. It is also not a partisan issue on the other side,

because the truth is the original FOIA passed during the Johnson

administration. President Johnson didn’t want to sign it, and only

did so at the very last minute and very reluctantly.

Mr. YARMUTH. Thank you for your testimony here today. I yield

back.

[The prepared statement of Hon. John A. Yarmuth follows:]

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Mr. HOYT. Thank you.

Mr. CLAY. I thank the gentleman from Kentucky.

Mr. Hoyt, you are exactly right. We do plan on bringing up the

Open Records Act, as well as this subcommittee does have jurisdiction over the implementation of.

Mr. Hoyt, let me ask you, outside of national security have members of your organization identified specific areas where there are

increasing conflicts with agencies in gaining access to Government

records and proceedings?

Mr. HOYT. The answer is, I think, Mr. Chairman, if you refer to

the report that you have so graciously put into the record, I think

when you read that report you will see that across the Government

the backlog is increasing, and it is increasingly difficult to get information.

Mr. CLAY. How about the proliferation of pseudo classifications

such as sensitive but unclassified.

Mr. HOYT. Yes.

Mr. CLAY. Is that limiting the amount of information available

to you?

Mr. HOYT. Yes, it is. The discussion before about the Card memo

and about the Ashcroft memo, those have—I think the word that

was used was tone, but to me that is kind of an understatement

about the impact. The fact of the matter is they have had a very

chilling effect, and agencies, I believe, have taken that as a signal

and they have acted on that signal.

Mr. CLAY. Thank you for that response.

Ms. Fredrickson, in general, about how many FOIA requests does

your organization file on an annual basis? And of these, about how

many receive an adequate response within the prescribed 20-day

statutory window?

Ms. FREDRICKSON. Well, we file a great number of FOIA requests, and I would have to get back to you with a typical number.

Mr. CLAY. Sure.

Ms. FREDRICKSON. I would have to say that of late it has been

very difficult. We have had to engage in quite a bit of litigation to

actually get responses to our FOIA requests. So I will get back to

the committee and provide you with further information on it.

Mr. CLAY. Could you give us an approximate percentage now on

which ones you think may or may not get a response?

Ms. FREDRICKSON. Well, our FOIA typically involve fairly controversial issues, so I think probably most of them meet resistance.

Mr. CLAY. So quite a few of them——

Ms. FREDRICKSON. Quite a few.

Mr. CLAY [continuing]. Get full denial.

Ms. FREDRICKSON. If not all of them. When we do get documents,

it takes quite a long time and, as you can see, they are very, very

heavily redacted, and even that is after the product of litigation. So

I think it has been very, very difficult.

Mr. CLAY. Thank you for that response.

Ms. Fuchs, last fall your organization expressed misgivings with

the recent attorney general report and agency FOIA activities.

Please elaborate for us on your areas of concern.

Ms. FUCHS. Well, we looked at all of the 1991 FOIA improvement

plans, and it was clear from reading those FOIA improvement

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plans that, without high-level agency support for the changes, and

also resources in some cases, it would be impossible for agencies to

meet those goals. And what concerned us is that the attorney general then reported on those reports to the President and didn’t acknowledge those concerns. And also one of the problems in the

FOIA area is there is no central overseer who can tell agencies you

have to do it. You have to fix the problem. The Justice Department

does an outstanding job issuing guidance, and it is just guidance,

and no one has to follow it, and in some cases they don’t pay any

attention to it. So it would be great to have a situation where improvements could be mandated.

Mr. CLAY. Sounds like you have some very interesting suggestions for streamlining this process and making it better for U.S.

citizens. Thank you.

Ms. FUCHS. Thank you.

Mr. CLAY. Are there any further questions? Mr. Hodes.

Mr. HODES. I just have one last one, Mr. Chairman. Thank you.

In talking about the office of an ombudsman, and following up

on Mr. Yarmuth’s question about alternatives to litigation, in my

background as an attorney in New Hampshire we have instituted

mandatory alternative dispute resolution for cases headed to litigation, which has reduced by 50 percent the burden on the courts and

does a great service, I think, to citizens. Do you think that having

mediation available through the office of the ombudsman would

help solve these cases before they get to costly litigation?

Mr. HOYT. If it didn’t rule out litigation, if litigation became necessary. I wouldn’t like to give up that right.

Mr. HODES. Mediation is generally a non-binding process. There

are various forms of alternative dispute resolution which are nonbinding which provide the opportunity for people to resolve their

disputes before going to court but don’t foreclose them.

Mr. HOYT. Another way that the ombudsman could help in this

process, a number of States have ombudsmen and have a process

under which ombudsmen issue advisory opinions, and they don’t

have the power to force an agency to do something, but they carry

great weight, because in the event of litigation these are admissible

as evidence and they carry a lot of weight. So something like that

could be a feature you might want to consider.

Mr. HODES. Thank you very much.

Thank you, Mr. Chairman.

Mr. CLAY. Thank you, too.

The gentleman from Kentucky, any further questions?

[No response.]

Mr. CLAY. If not, I would just like to conclude our first hearing

on this important subject by saying that it is evident that the public needs to have access to certain Government information, and it

will certainly be a goal of this committee to help streamline that

process.

I want to thank the witnesses of this panel and the previous

panel for your participation in this.

Without objection, the committee stands adjourned. Thank you.

[Whereupon, at 4:27 p.m., the subcommittee was adjourned.]

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