U.S. GOVERNMENT PUBLISHING OFFICE

36–620 PDF WASHINGTON : 2019

FOIA: EXAMINING TRANSPARENCY UNDER 

THE TRUMP ADMINISTRATION 

HEARING 

BEFORE THE

COMMITTEE ON 

OVERSIGHT AND REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED SIXTEENTH CONGRESS 

FIRST SESSION 

MARCH 13, 2019 

Serial No. 116–09 

Printed for the use of the Committee on Oversight and Reform 

( 

Available on: http://www.govinfo.gov 

http://www.oversight.house.gov 

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

COMMITTEE ON OVERSIGHT AND REFORM 

ELIJAH E. CUMMINGS, Maryland, Chairman 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

RAJA KRISHNAMOORTHI, Illinois 

JAMIE RASKIN, Maryland 

HARLEY ROUDA, California 

KATIE HILL, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

JOHN P. SARBANES, Maryland 

PETER WELCH, Vermont 

JACKIE SPEIER, California 

ROBIN L. KELLY, Illinois 

MARK DESAULNIER, California 

BRENDA L. LAWRENCE, Michigan 

STACEY E. PLASKETT, Virgin Islands 

RO KHANNA, California 

JIMMY GOMEZ, California 

ALEXANDRIA OCASIO-CORTEZ, New York 

AYANNA PRESSLEY, Massachusetts 

RASHIDA TLAIB, Michigan 

JIM JORDAN, Ohio, Ranking Minority Member 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

VIRGINIA FOXX, North Carolina 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

JODY B. HICE, Georgia 

GLENN GROTHMAN, Wisconsin 

JAMES COMER, Kentucky 

MICHAEL CLOUD, Texas 

BOB GIBBS, Ohio 

RALPH NORMAN, South Carolina 

CLAY HIGGINS, Louisiana 

CHIP ROY, Texas 

CAROL D. MILLER, West Virginia 

MARK E. GREEN, Tennessee 

KELLY ARMSTRONG, North Dakota 

W. GREGORY STEUBE, Florida 

DAVID RAPALLO, Staff Director 

SUSANNE SACHSMAN GROOMS, Deputy Staff Director and Chief Counsel 

ELISA LANIER, Chief Clerk and Director of Operations 

KRISTA BOYD, General Counsel 

KADEEM COOPER, Counsel 

BRANDON RIOS, Counsel 

LAURA RUSH, Deputy Clerk 

CHRISTOPHER HIXON, Minority Staff Director 

CONTACT NUMBER: 202-225-5051 
(III) 

C O N T E N T S 

Page 

Hearing held on March 13, 2019 ............................................................................ 1 

WITNESSES

Melanie Ann Pustay, Director, Office of Information Policy, Department of 

Justice 

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

Rachel Spector, Deputy Chief Freedom of Information Act Officer, Office 

of the Solicitor, Department of the Interior 

Oral Statement ................................................................................................. 6 

Timothy R. Epp, Acting Director, National FOIA Office, Office of General 

Counsel, Environmental Protection Agency 

Oral Statement ................................................................................................. 7 

Written statements for the witnesses are available on the U.S. House of Representatives Document Repository at: https://docs.house.gov. 

INDEX OF DOCUMENTS 

The documents listed below are available at: https://docs.house.gov. 

* Statement from the Electronic Privacy Information Center; submitted 

by Ms. Hill 

* U.S. District Court Northern District of California-Sierra Club, Plaintiff 

v. United States Environmental Protection Agency, Defendant, Case No. 

18-cv-03472-EDL; submitted by Ms. Hill 

* U.S. Dept. of the Interior February 28, 2019 Memo Regarding FOIA; 

submitted by Ms. Wasserman Schultz 

* Public Citizen Statement; submitted by Mr. Sarbanes 

(1) 

FOIA: EXAMINING TRANSPARENCY UNDER 

THE TRUMP ADMINISTRATION 

Wednesday, March 13, 2019 

HOUSE OF REPRESENTATIVES

COMMITTEE ON OVERSIGHT AND REFORM

Washington, D.C. 

The committee met, pursuant to notice, at 10:03 a.m., in room 

2154, Rayburn House Office Building, Hon. Elijah Cummings presiding. 

Present: Representatives Cummings, Maloney, Lynch, Connolly, 

Krishnamoorthi, Rouda, Hill, Wasserman Schultz, Sarbanes, 

Welch, Speier, Kelly, DeSaulnier, Plaskett, Gomez, Ocasio-Cortez, 

Pressley, Tlaib, Jordan, Amash, Gosar, Foxx, Meadows, Hice, 

Grothman, Comer, Cloud, Gibbs, Higgins, Miller, Armstrong, and 

Steube. 

Chairman CUMMINGS. The committee will come to order. 

Without objection, the Chair is authorized to declare a recess of 

the committee at any time. 

The full committee hearing is convening to examine the compliance of Federal agencies with FOIA. 

I now recognize myself for five minutes to give an opening statement. 

The committee is holding this hearing on transparency under the 

Trump Administration during Sunshine Week. Sunshine Week is 

the time each year when we focus on the need for greater transparency in our government. 

In 1966, Congress enacted the Freedom of Information Act so the 

American people could better understand the decisions being made 

by their government. FOIA is also critical to understanding who is 

influencing those decisions and how those decisions will affect their 

daily lives. 

Today, we will hear from Ms. Melanie Pustay, the Director of the 

Office of Information Policy at the Department of Justice. DOJ is 

responsible for carrying out FOIA implementation across the executive branch. In my opinion, DOJ needs to do a much, much better 

job because we are seeing far too much information being delayed 

and even withheld. 

Earlier this week, during a Sunshine Week kickoff event, Jesse 

Panuccio, the Principal Deputy Associate Attorney General and 

Chief FOIA Officer for DOJ, said this during a speech, and I quote: 

‘‘Unfortunately, as with everything in life, there are excesses, and 

there are excesses that strain the system. Some groups have 

turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking,’’ end of quote. 
2 

This statement is deeply troubling. This sounds like DOJ is 

framing requests for information as obstructions. The Trump Administration should be operating with a presumption of openness, 

as the law now requires, rather than maligning FOIA requesters 

who are simply seeking the truth. 

We also will hear today from the Acting Director of the National 

FOIA Office for the Environmental Protection Agency, Tim Epp. 

Last year, our committee uncovered troubling issues with the way 

EPA was responding to FOIA requests in an investigation of former 

Administrator Scott Pruitt and his senior staff. 

The Chief of Staff stated during a transcribed interview with our 

committee staff that EPA staff were referring, and I quote, ‘‘politically charged’’ FOIA requests to political appointees for review. He 

also explained that certain requests were being deliberately delayed. Today, we will investigate whether these tactics are still 

being used. 

Finally, also testifying today is the Acting Deputy Chief FOIA 

Officer from the Department of the Interior, Rachel Spector. On 

December 28th, during the government shutdown, the Department 

proposed a new rule that would make it harder for requesters to 

obtain information. 

Last week, I sent a letter to the Acting Secretary raising concerns about the proposed rule, and I was joined by Senator Patrick 

Leahy, Senator Chuck Grassley, and Senator John Cornyn. 

That letter, as you can see, was bipartisan, and oversight of 

FOIA compliance should always be bipartisan. 

In 2013, when I was the Ranking Member of this committee, I 

worked with our Republican chairman at the time, Darrell Issa, to 

introduce a FOIA reform bill. For three long, hard years, we 

worked together to advance this bipartisan bill through the Congress. And then, with the help of Senator Cornyn and Senator 

Leahy, we got it over the finish line. President Obama signed the 

FOIA Improvement Act into law in 2016. I am grateful to the many 

members of this committee who sponsored the legislation, including 

my Republican colleagues, Mr. Hice from Georgia and Mr. Gosar 

from Arizona. 

The FOIA Improvement Act is a prime example of how Members 

of Congress from both parties can work together to achieve positive 

results for the American people. 

The law made a lot of important changes, but the Trump Administration, unfortunately, is failing to fully comply with the requirements of the new law. 

Some agencies, including EPA, have not updated their regulations. Other agencies still have not published data on FOIA compliance for the year 2018. The Department of the Interior did release 

its data online, but it shows that the Department proactively disclosed 58 percent less data than the last full year of the Obama Administration. 

I know that there are FOIA officers across the executive branch 

watching this hearing this morning. I want to say to them that I 

know you need more resources and more support for the work you 

do. So let me be clear. This hearing will not be the end of our work 

as a committee on these issues. We will fight to bring greater 

transparency to all operations of our government. 
3 

And with that, I yield to the distinguished ranking member of 

this committee, Mr. Jordan. 

Mr. JORDAN. Thank you, Mr. Chairman, for calling this hearing 

to examine government transparency during the week in which we 

are promoting open and transparent government, Sunshine Week. 

Nothing holds a government more accountable than making its 

actions open and transparent to the American taxpayer. Transparency is the lifeblood of an informed democracy. 

Essential to this precept is the Freedom of Information Act, 

which gives the public a tool to gain insight into how their government functions. FOIA’s promise of openness is central to this committee’s mission of increasing transparency throughout the Federal 

Government. It is not hard to make a FOIA request, but navigating 

the FOIA process is complicated, and it varies across government 

agencies. 

In responding to a FOIA request, each agency has its own set of 

standards, which may or may not be updated to reflect current law. 

The FOIA law requires documents to be released unless those documents fall into the exemptions outlined in the statute. 

In large part, FOIA’s efficacy is limited by the responsiveness of 

the agency that receives and processes the request. It is our job 

here in Congress to ensure agencies are following the law when it 

comes to FOIA. Congress intended for FOIA to increase accountability by giving taxpayers a view into the inner workings of their 

government. FOIA compliance has not come easily for many agencies. Issues with agency FOIA compliance did not begin, though, 

during the Trump Administration. Although President Obama 

pledged to have the most transparent administration in history, his 

administration had several notable FOIA-related problems. 

Under President Obama, agencies changed FOIA regulations, implemented new policies, abused the exemptions, refused to produce 

responsive records, and struggled with overall FOIA compliance. 

The Trump Administration has received an unprecedented number of FOIA requests. This is important. The numbers went up for 

the Trump Administration. 

A major reason for the increases at EPA and other agencies is 

that former Obama and Clinton staffers, acting under the guise of 

being transparent organizations, are being paid by the Tom Steyers 

of the world to harass the executive branch now that it is in Republican control. 

For example, American Oversight, which is led by Austin Evers, 

who oversaw FOIA-related matters at the State Department under 

President Obama, admits on its website, and I quote: ‘‘American 

Oversight is filing FOIAs and lawsuits that mirror the document 

requests sent by the chairs and ranking members of key congressional committees. With the House of Representatives poised to 

begin conducting aggressive oversight, we will be able to go to court 

to force the release of these records.’’ 

During Fiscal Year 2017, according to the Office of Information 

Policy, the government received a record high of over 818,000 FOIA 

requests. Even with this unprecedented level of requests, many 

agencies reduced their FOIA backlogs. According to OIP, even 

those agencies who did report an increase in their FOIA request 
4 

backlog made impressive efforts to increase the number of requests 

processed. 

Nonetheless, this is an important duty for Congress to ensure 

that when it comes to FOIA, agencies are following the law. 

I want to thank our panel of witnesses for being here today, and 

I look forward to hearing from all of you about your experiences 

with FOIA, the efforts your agencies are making to comply with the 

spirit of our law, and any suggestions you might have to ensure 

disclosure of information is timely, accurate, and routine. 

With that, Mr. Chairman, I yield back. 

Chairman CUMMINGS. I want to thank the gentleman for his 

statement. 

With that, I now want to welcome our witnesses for today’s hearing. 

Ms. Melanie Pustay? 

Ms. PUSTAY. Pustay. 

Chairman CUMMINGS. Say it again. 

Ms. PUSTAY. Pustay. 

Chairman CUMMINGS. Okay, I like that. 

[Laughter.] 

Ms. PUSTAY. I think I do, too. 

[Laughter.] 

Chairman CUMMINGS. And you are the Director of the Office of 

Information Policy, U.S. Department of Justice. 

Mr. Timothy Epp is the Acting Director of the National FOIA Office at the Environmental Protection Agency. 

Ms. Rachel Spector is the Acting Deputy Chief FOIA Officer for 

the Department of the Interior. 

Thank you all for participating in today’s hearing. 

If you all would please rise, I would begin to swear you in, and 

would you raise your right hand. 

[Witnesses sworn.] 

Chairman CUMMINGS. You may be seated. 

Let the record show that the witnesses answered in the affirmative. 

To our witnesses, the microphones are sensitive, so please speak 

directly into them. 

Without objection, your written statements will be made a part 

of the record. 

With that, Ms. Pustay, you are now recognized to give an oral 

presentation of five minutes, and I would ask that you try to limit 

your comments. I try to be fair and liberal. I know you want to get 

stuff out, statements out, but keep in mind that we do have your 

entire statement. So if you would be kind enough to summarize? 

Okay, thank you very much. Keep your voice up. 

STATEMENT OF MELANIE ANN PUSTAY, DIRECTOR, OFFICE OF INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE 

Ms. PUSTAY. Good morning again, Chairman Cummings, Ranking Member Jordan, and members of the committee. I am pleased 

to be here today to discuss the Freedom of Information Act and the 

Department of Justice’s ongoing efforts to ensure compliance with 

the statute. 
5 

My office has undertaken a range of initiatives designed to assist 

agencies in improving their FOIA administration, and today I am 

pleased to highlight some of those efforts. 

Just last month, OIP issued comprehensive guidance to agencies 

on adjudicating administrative appeals under the FOIA. As one of 

the agencies that receives and processes the most FOIA appeals 

across the government, we have seen firsthand the positive benefits 

that a robust administrative appeals process can have for both 

agencies and requesters. 

For a requester, the FOIA administrative appeals process provides a simple-to-use mechanism to seek review of the initial action 

taken on a request. That, in turn, increases their confidence in the 

FOIA process. 

For agencies, an effective appeals process provides an opportunity to review and reevaluate, if necessary, the initial action 

taken on a request to provide clarification, correct any mistakes, 

and thereby obviate unnecessary judicial review. 

Now, while the administrative appeals process offers a formal 

mechanism for requesters to seek a second review of the action 

taken on their request, agencies often interact with the public in 

more informal ways through their FOIA requester service centers 

and their FOIA public liaisons. In June 2018, OIP issued guidance 

to agencies that addresses the importance of quality requester services as agencies engage with the public during all stages of the 

FOIA process. 

Now, overseeing all of the agencies’ FOIA operations are agency 

Chief FOIA Officers. DOJ’s FOIA guidelines have long held that 

improving FOIA performance requires the active participation of 

agency Chief FOIA Officers. The Department addressed this critical aspect of FOIA administration by issuing a memorandum in 

January that emphasized the significant role of the Chief FOIA Officer and the importance of ensuring that this position is properly 

designated at the assistant secretary level or equivalent, as is required by law. 

We also required agencies to report on whether their designations meet the statutory requirement in their 2019 Chief FOIA Officer reports. 

Now, in addition to providing guidance to agencies, the Department firmly believes that training is fundamental to any successful 

FOIA program. Such training helps ensure that the law is properly 

and consistently implemented across the government. As part of 

our efforts to encourage governmentwide compliance with the 

FOIA, every year experts from my office provide training to thousands of FOIA professionals across the government. We also hold 

best practices workshops so that we can share successful strategies 

and approaches to FOIA administration. 

The Department’s FOIA guidelines stress that every agency must 

be accountable for their FOIA administration, and we engage in a 

number of efforts to keep agencies accountable, and also to help 

them move forward in their administration of the FOIA. 

Every year, OIP issues reporting requirements for agencies that 

focus on five key areas, including proactive disclosures, use of technology, and timeliness in responding to requests. We conduct a detailed review and assessment of agencies’ progress. We score agen-
6 

cies on a variety of milestones, providing a visual snapshot of the 

progress being made in areas in need of improvement. 

I would like to take a minute to highlight one of our major initiatives. As you know, the FOIA Improvement Act included a requirement that DOJ and OMB ensure the operation of a consolidated 

online request portal that allows members of the public to submit 

a request to any agency from a single website. Last March, we 

were very pleased to go live with our first iteration of the National 

FOIA Portal, which resides on FOIA.gov. Since the release of the 

portal, FOIA.gov has received over a million page views, and 9,000 

requests have been transmitted through the portal. 

Building on this achievement, last month DOJ and OMB issued 

joint guidance to agencies on becoming fully interoperable with the 

portal. The directive also requires agencies to regularly update 

their FOIA.gov accounts and to annually certify to DOJ that they 

have done so. We are very pleased with the positive feedback that 

the National FOIA Portal has received from both the public and 

the agencies, and we look forward to continuing to make improvements to that site. 

Now, we believe that every request is important. And yet, with 

finite resources and an ever-increasing volume of complex requests, 

the challenges that many agencies face and the strain on the system can be substantial. OIP is fully committed to its responsibility 

of encouraging governmentwide compliance with the FOIA. We will 

continue to guide and train agencies to share best practices and explore IT innovations, all to help agencies meet the FOIA challenges 

of today. 

Thank you. 

Chairman CUMMINGS. Thank you very, very much. 

Ms. Spector? 

STATEMENT OF RACHEL SPECTOR, ACTING DEPUTY CHIEF, FREEDOM 

OF INFORMATION ACT OFFICER, U.S. DEPARTMENT OF THE INTERIOR 

Ms. SPECTOR. Chairman Cummings, Ranking Member Jordan, 

members of the committee, thank you for the opportunity to appear 

before you today. My name is Rachel Spector, and I am the Deputy 

Chief Freedom of Information Officer in the Office of the Solicitor 

at the Department of the Interior, a newly created position that I 

have held for the past two months. 

I have worked in public service the majority of my life, beginning 

with my employment as a legislative assistant to Congressman 

Dave Obey for almost eight years. I left that position to attend law 

school and returned to public service when I joined the Solicitor’s 

Office at Interior in 2002. 

For most of my career in the Solicitor’s Office I have worked in 

the division that provides legal services on core administrative law 

matters, including the FOIA. During my 17-year tenure at Interior, 

I proudly served as a career public servant to both Republican and 

Democratic administrations, assisting the Department to pursue its 

great mission in a lawful manner. 

The Department’s FOIA offices have experienced a 30 percent increase overall in the volume of incoming FOIA requests since Fiscal 

Year 2016. The FOIA office for the Office of the Secretary has been 

hit especially hard, experiencing a 210 percent increase. 
7 

Because many of the Department’s FOIA offices are unable to 

timely respond to the increased volume of requests, the Department has also experienced an unprecedented increase in FOIA litigation in which requesters are not suing the Department because 

it allegedly withheld documents that are subject to release under 

the FOIA but simply because requesters have not received timely 

responses to their requests. 

The surge in FOIA litigation further hobbles the ability of FOIA 

processors to do their work in a timely and equitable manner because the litigated requests typically jump to the head of the queue 

ahead of non-litigated requests. 

The FOIA professionals at the Department are dedicated public 

servants who are committed to their work on behalf of the American people. These circumstances, however, have led to an environment in which the Department is unable to properly serve the 

FOIA requester community. 

Leadership in Interior believes it is imperative to break this unproductive cycle. To that end, former Secretary Zinke issued Secretary’s Order 3317, a copy of which is included in my written materials, that underscores the Department’s commitment to an equitable FOIA program that ensures compliance with statutory requirements of transparency, accountability, and prompt production. 

The order designates the Solicitor as the chief FOIA officer in the 

Department to significantly increase the visibility and authority of 

the position and leverage the substantial legal expertise of the Solicitor’s Office with respect to the FOIA. 

The order also establishes the operational position of DCFO to 

oversee the Department’s FOIA program and take meaningful 

steps to improve the quality, efficiency, and consistency of the work 

performed by the FOIA offices. 

As DCFO, I have begun a broad effort to improve the organization and governance of the Department’s FOIA program that includes establishing uniform position descriptions and performance 

standards for FOIA staff and setting appropriate pay grades; establishing hiring requirements for the bureaus to assure adequate 

staffing and top-quality hires; creating a robust training program 

for FOIA officers and processors; issuing standard operating procedures for FOIA processing and other needed policies; and obtaining 

and deploying modern, reliable technology for FOIA request tracking, as well as tools for searching, collection, and document review. 

I am proud to lead this important effort to improve the Department’s ability to meet its obligations under the FOIA. I also appreciate the consistent bipartisan interest of the Congress in the FOIA 

and welcome any insights members of the committee may have to 

assist the Department in meeting this important goal. 

With that, I conclude my remarks. Thank you again for the opportunity to appear before you today. 

Chairman CUMMINGS. Thank you very much. 

Mr. Epp? 

STATEMENT OF TIM EPP, ACTING DIRECTOR, NATIONAL FOIA OFFICE, 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. EPP. Good morning, Chairman Cummings, Ranking Member 

Jordan, and members of the committee. As mentioned, my name is 
8 

Timothy Epp. I am the Environmental Protection Agency’s Acting 

Director for the National FOIA Office within the Office of General 

Counsel. 

EPA created the National FOIA Office this past year to provide 

centralized FOIA program services for the agency in what otherwise remains a substantially decentralized FOIA program. 

I appreciate the opportunity to come before you today, during 

Sunshine Week, to share EPA’s commitment to operate transparently and to improve the speed and quality of EPA’s FOIA responses. 

I would like to quickly touch upon key items covered in greater 

detail in my prepared statement, namely the commitment of EPA 

senior leadership, the many initiatives EPA is implementing, EPA’s 

proactive disclosure, and the challenges EPA faces. 

First, on the senior leadership’s commitment. EPA established a 

strategic goal on transparency which includes eliminating the 

FOIA backlog. Also, this past August, then Acting Administrator 

Wheeler held a planning meeting on FOIA with agency senior leadership. At that meeting he expressed his expectation for EPA’s 

quality and timeliness in FOIA responses. He directed a review of 

the agency’s efforts, and he asked for options for the EPA to take 

concrete actions to address FOIA processing quality and timeliness. 

Administrator Wheeler also sent an announcement to all EPA 

staff reinforcing the agency’s commitment to transparency and 

FOIA timeliness and quality. Also in November, EPA issued a significant policy memo to streamline and eliminate confusion regarding EPA’s awareness notification process. 

EPA also added FOIA accountability language to all FOIA managers’ performance agreements addressing FOIA response quality 

and timeliness, and for appropriately supervising and training all 

EPA professionals who administer FOIA responses. 

Over the past year, EPA significantly improved its FOIA program in a number of ways. First, EPA delegated the Chief FOIA 

Officer function to the General Counsel to raise the profile and accountability of the EPA’s FOIA implementation. 

Second, EPA launched a reorganization of the FOIA programs in 

each of the 10 EPA regional offices, moving those programs into 

the Regional Counsel’s offices in order to provide reporting responsibility lines up to the General Counsel, who is the Chief FOIA Officer. 

Third, EPA created the National FOIA Office, which I now head. 

The National FOIA Office was created by a merger of the National 

FOIA Program into the Office of General Counsel and combining 

it with the previously existing FOIA Expert Assistance Team, 

which we call the FEAT. The NFO provides centralized programmatic services pertaining to the agency’s implementation of 

the FOIA, including request intake and assignment for headquarters program offices. The FOIA staff also staffed the FOIA Requester Service Center and the FOIA Public Liaison. They issue expedited processing and fee waiver determinations, prepare a 

monthly and annual FOIA report, provide training, and the office 

is responsible for updating and reviewing the FOIA website, regulations, policies, and procedures. 
9 

The FOIA Expert Assistance Team provides legal counseling, 

training, and project management assistance on the most challenging, complex, and high-profile FOIA requests that the agency 

receives. The FEAT has been in existence since 2013, and has 

worked on the agency’s most significant public health and environmental FOIA projects, including ones that are in the news such as 

Gold King Mine, the Flint drinking water crisis, Bristol Bay, as 

well as the enforcement action on VW. By establishing this office 

with both of those functions, the agency intends to improve its 

FOIA responses. 

I see that I am running out of time to describe the other improvements that we have made. I would be happy to take your 

questions, and thank you. With that, I will conclude. 

Chairman CUMMINGS. Thank you very much. 

I yield now to Ms. Pressley, five minutes for questions. 

Ms. PRESSLEY. Thank you, Mr. Chairman. 

Ms. Pustay, the FOIA Improvement Act of 2016 encourages 

proactive disclosure. That bipartisan law requires agencies to identify records of general interest and to post those records. Is that 

correct? Yes or no? 

Ms. PUSTAY. I am sorry. I—— 

Ms. PRESSLEY. I will start over. 

Ms. PUSTAY. Thank you. 

Ms. PRESSLEY. I have only five minutes, though. 

The FOIA Improvement Act of 2016 encourages proactive disclosure. That bipartisan law requires agencies to identify records of 

general interest and to post those records. Is that correct? 

Ms. PUSTAY. You are not exactly quoting the statute, but it is 

definitely correct that the FOIA Improvement Act has a provision 

to require agencies to make proactive disclosure. 

Ms. PRESSLEY. Okay. I will move on. 

Investigations by the Sunlight Foundation have revealed that the 

Department of Health and Human Services has removed web pages 

providing information about the Affordable Care Act from the 

Medicare.gov website. The Sunlight Foundation report notes that 

the deleted page contained information on how Medicare coverage 

relates to the health insurance marketplace and links to pages with 

additional information. Other similar reports from the Sunlight 

Foundation note that the Department of Health and Human Services has also scrubbed information about breast cancer, preventive 

services guaranteed by the Affordable Care Act, as well as various 

LGBTQ health issues from its website for the Office of Women’s 

Health. 

Were you aware that the Department of HHS has removed content related to preventive care, LGBTQ health, and women’s health 

from its website? 

Ms. PUSTAY. I really would refer you to HHS for the decisions 

that they have made on posting or not posting information. 

Ms. PRESSLEY. Well, do you endorse that decision? 

Ms. PUSTAY. We at the Department of Justice have a strong 

record of encouraging agencies to proactively post information beyond what is required by the statute to be posted, but to actually 

look for information that is of interest to the public, to work with 

their community of requesters, to identify—— 
10 

Ms. PRESSLEY. I am sorry, but this is about people’s lives and access to really critical information. So in your personal opinion, 

scrubbing information about breast cancer, preventive services 

guaranteed by the ACA, and various LGBTQ health issues from its 

website, this is the Office of Women’s Health, what is your personal 

opinion of that? 

Ms. PUSTAY. Well, I am not here to give you my personal opinion, 

but I can give you my opinion in my role at the Department of—— 

Ms. PRESSLEY. Okay. I think you did that, and we just disagree. 

Moving on, the Sunlight Foundation also reported that the Department of Justice has removed information from its website without providing any notice or explanation. Specifically, the report 

notes that the Department of Justice removed information from its 

website for the Office of Violence Against Women, including removing a section on how to respond to stalking. That section provided 

links with specific tips for victims, for prosecutors, law enforcement 

officers, judges, and others. 

Were you aware that the DOJ removed these resources for victims of domestic violence from its website? 

Ms. PUSTAY. No, I am not personally aware, aware in my official 

capacity. I am happy to make further inquiries about it, though. 

Ms. PRESSLEY. Well, I hope you would because, again, this is denying victims access to critical information that could determine 

their very life or death. 

Despite the fact that the Office of Violence Against Women has 

a website archive, the deleted information does not appear to be 

provided in the archive. 

Do you agree that it is important for agencies to provide helpful 

information about how Americans might obtain assistance under 

existing laws? Yes or no? 

Ms. PUSTAY. I definitely think it is important for proactive disclosures to be there to help the public and inform the public. 

Ms. PRESSLEY. Okay. One more time for the record. Do you agree 

that it is important for agencies to provide helpful information 

about how Americans might obtain assistance under existing laws? 

Because the stalking information and that critical information was 

removed. 

Ms. PUSTAY. Yes. I do not want to address a specific set of documents without knowing more about them. It would not be responsible of me to do so. But I absolutely agree that the reason for having proactive disclosures, and why it is such an important part of 

the FOIA, is to provide information that is of interest to the public 

affirmatively so that there is not a need to make a FOIA request 

for it. That is an important part of the Freedom of Information Act, 

and it is an aspect of—— 

Ms. PRESSLEY. Okay. I am sorry, but I am running out of time. 

Do you think it would be an appropriate issue for the Department of Justice to review? 

Ms. PUSTAY. I am certainly happy to look into it. 

Ms. PRESSLEY. Okay. Given that some agencies—and I am out of 

time. Thank you. 

Chairman CUMMINGS. I thank the gentle lady. 
11 

When you talk, we cannot hear you. So when you talk into the 

mic, can you get it kind of close to you? All of you, please, so we 

can hear you. All right? I think we kind of got through that one. 

Mr. Meadows for five minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman. Thank you for holding 

this hearing as we continue to look at FOIA. 

Ms. Pustay, I can tell you that this is not a partisan issue. It is 

one that we have had a number of hearings on, and candidly, I appreciate your willingness to actually move the ball down the road 

and get a lot of this information flowing to the American people. 

I think transparency is good medicine, and yet we continue to 

miss the statute. The statute is very clear on how quickly we need 

to respond to FOIA requests, and honestly, that is just not happening. Would you agree with that? 

Ms. PUSTAY. There is no doubt, as I mentioned in my opening 

statement, for many agencies there is a strain on the system. 

Mr. MEADOWS. That was not my question. My question was is 

there a statute that gives a number of days that you need to reply 

to FOIA requests? Is there not a law? 

Ms. PUSTAY. The statute actually provides several mechanisms 

for seeking an extension of time and provides for—let me say it 

this way—recognizes that there are many situations, and it is set 

forth in the statute where it will take longer than 20 days, or even 

30 days, to respond to a request. So the statute has built into it 

a recognition of the fact that agencies will be challenged at times 

in responding within 20 or 30 days. 

For instance, with voluminous requests—— 

Mr. MEADOWS. I get that. 

Ms. PUSTAY. When someone asks for thousands or tens of thousands of pages—— 

Mr. MEADOWS. No, I get that. So let me just ask you, and here 

is the crux of the matter. Overall, we are not complying with the 

law as the Federal Government, and this did not just happen under 

President Trump. It happened under the previous administration, 

and the administration before that. We are not complying with the 

law, or at least even the spirit of the law, which says that when 

you get a FOIA request, you actually try to get it out of the door 

in 21 days. Is that correct? 

Ms. PUSTAY. I respectfully disagree with the premise. I do think 

that agencies overall are complying with the law. 

Mr. MEADOWS. Okay. Then why do we have FOIA requests, Ms. 

Pustay? That was supposed to be a softball question. So why do we 

have agencies that continue—we are still waiting on documents 

that we requested from the State Department under the previous 

administration. So how can you say that that is compliance? How 

could Judicial Watch go through a lawsuit and get documents that 

both Democrats and Republicans have requested, and they get 

them through the courts, but we cannot get them through normal 

requests? How does that happen? 

Ms. PUSTAY. One of the things that I think actually has a very 

unfortunate negative impact on FOIA administration is the fact 

that when somebody goes to court, and goes to court after day 20 

or after day 30, because the statute allows people to go to court 

that quickly, that what happens all too often is it pushes that re-
12 

quest to the front of the line, and then the ordinary citizen, the historian, the journalist, their requests get kicked further back. 

Mr. MEADOWS. So how do we fix that? I agree that that is happening. So how do we fix that? 

Ms. PUSTAY. Well, that would require a statutory change. 

Mr. MEADOWS. What do you mean that requires—just to give 

them more time? 

Ms. PUSTAY. I mean, I am certainly, obviously, happy to talk 

with the committee and work with the committee on legislative 

proposals. What agencies have to do, as a practical matter, taking 

the law as it is now, is manage their resources so that they can 

handle litigation deadlines that are now being imposed on them by 

court order, incorporate that within their day-to-day processing of 

requests from ordinary citizens; and because we have had, year 

after year, a tremendous increase in the volume of requests coming 

in, one of the things that we have been advising agencies to do is 

to focus on simple track requests, smaller volume requests—— 

Mr. MEADOWS. And have you seen an increase there in terms of 

compliance? I know you—— 

Ms. PUSTAY. Yes. 

Mr. MEADOWS. And what percentage increase? 

Ms. PUSTAY. We score agencies every year on whether or not 

their simple track requests can be processed within an average of 

20 working days. 

Mr. MEADOWS. And how many of them are complying? I mean, 

what is the percentage? 

Ms. PUSTAY. I do not have the actual numbers. 

Mr. MEADOWS. Can you get that back to the Chairman or the 

Ranking Member? 

Ms. PUSTAY. It is available on our website, but we are happy to 

also give it to you, yes. 

Mr. MEADOWS. Okay. Here is my concern, and here is what I 

would ask you to help our committee out with. We need to streamline the process, whether it is when a document is created and it 

gets a stamp that says this is Okay for FOIA release—the problem 

is that you have too many people, in my opinion, in the chain of 

approving something before it goes to the American public. So you 

get documents that should be released easily that have to still go 

through the chain. 

Can you come up with two or three recommendations on how we 

streamline that process and report back? 

Ms. PUSTAY. Yes, sure, happy to do so. 

Mr. MEADOWS. All right. Thank you. 

I yield back. 

Chairman CUMMINGS. Thank you very much. 

Mrs. Maloney? 

Mrs. MALONEY. Thank you. Thank you, Mr. Chairman. 

Ms. Pustay, on December 28th, 2018, the Department of the Interior proposed a new rule on processing FOIA requests. Did Interior 

consult with the Office of Information Policy before it issued the 

proposed rule? 

Ms. PUSTAY. No, it did not. 

Mrs. MALONEY. It did not. The rule proposed by Interior would 

set limits on requests when they involve the processing of, quote, 
13 

‘‘a vast quantity of material,’’ end quote. The rule seems designed 

to give Interior discretion to arbitrarily reject requests by claiming 

the requests are too large or too burdensome. 

In 1983, the Department of Justice explained in a guideline document, and I quote, ‘‘The sheer size of burdensome requests of a 

FOIA in and of itself does not entitle an agency to deny that request on the grounds that it does not reasonably describe records,’’ 

end quote. 

Is the proposed rule consistent with guidelines issued by the Department of Justice? 

Ms. PUSTAY. I will let my colleague from the Department of the 

Interior discuss their proposed regulation. What I can tell you is 

that we will be engaging with the Department of the Interior 

to—— 

Mrs. MALONEY. Okay. I have limited time, and we will get that 

response from them. 

And under the rule proposed by Interior, the agency would be 

able to ignore a request that, quote, ‘‘requires the bureau to locate, 

review, redact, or arrange for inspection of a vast quantity of material,’’ end quote. 

Is Interior authorized to deny a request based on its sheer size 

alone, without even trying to work out a response with the requester? Ms. Spector, Interior’s proposed rule does not define what 

Interior would view as ‘‘a vast quantity of material.’’ Without a 

clear standard, would you say, Ms. Spector, that the rule could easily be abused to obstruct the public’s access to information from Interior? And are there any limits to Interior’s ability to deny requests under the proposed rule? 

Ms. SPECTOR. Well, I will start with the last question that you 

posed. Indeed, there are limits. The ‘‘vast quantity’’ language that 

you have quoted from our proposed rule is a codification of a 1990 

D.C. Circuit Court opinion. Since 1990, there has been a body of 

case law that has developed, and we would use that case law as 

the sideboards to make that determination and not make that determination in an arbitrary and capricious manner. 

The purpose of placing that—of proposing that change in our regulations was to address the substantial increase in complex discovery-like requests we are receiving for any and all records, or requests to conduct broad keyword searches. 

Mrs. MALONEY. And, Ms. Pustay, is there any compelling reason 

why Interior’s FOIA office should have more onerous rules for processing requests than any other agency in government? Is there any 

reason why they should have this discretion? 

Ms. PUSTAY. I do not want to comment specifically on Interior’s 

rules because we are going to be working with them. 

Mrs. MALONEY. Well, the Chairman has commented on it. Chairman Cummings, along with Senator Leahy, and in a bipartisan 

way with Republican Senators Chuck Grassley and John Cornyn, 

they sent a letter to Acting Secretary David Bernhardt to express 

their significant concern over this unfair proposed rule, and I agree 

completely with their statement and with their letter. 

The American people have the right to access information from 

the Department of the Interior, and the proposed rule would needlessly encroach on that right. So I urge DOI and everyone to object 
14 

to this proposed rule and withdraw it immediately. It is very unfair 

and it seems like an attempt to withhold information. 

And I yield back the balance of my time. 

Chairman CUMMINGS. Mr. Hice for five minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

Ms. Pustay, I just want to echo what has already been said. 

There are many on this committee who have been waiting for documents for a long, long time, particularly some from the Obama Administration for years. We really would like to get those documents 

as soon as possible. I want to make sure that that is clearly communicated. 

I understand the difficulty with the requests going up. I get that. 

But the task is the task and needs to be handled. 

Mr. Epp, let me go to you. How many people at the EPA work 

on FOIA? 

Mr. EPP. So, our annual report indicates that there are approximately 100 full-time employees who work on FOIA, and approximately another 100 full-time FTEs. So those are partial time. 

Mr. HICE. So does every office within the EPA have a FOIA office, every department? 

Mr. EPP. Every one of the major program divisions has a FOIA 

program. 

Mr. HICE. Okay. Is it adequate enough to respond to the requests? 

Mr. EPP. Well, we have been responding to requests—approximately 60 percent of the requests we respond to within the 20-day 

time period. But we also, at the end of Fiscal Year 2018, had a substantial backlog. 

Mr. HICE. Okay. And do you have plans to deal with that backlog? 

Mr. EPP. We have a lot of plans to deal with that backlog. As I 

was listening, and in my prepared remarks and opening statement, 

we have started a reorganization of the FOIA program. We have 

created a centralized National FOIA Office. We are looking at ways 

of centralizing other aspects of the program; and, yes, we have—— 

Mr. HICE. When will those ideas be implemented? 

Mr. EPP. We have already started implementing those activities. 

So the reorganization of the Regional Counsel’s Offices are going to 

waterfall forward starting in this month. 

Mr. HICE. What kind of requests are coming in? Is it changing? 

In other words, are we having more requests from reporters, from 

members of the public, from advocacy groups? Are we seeing a 

change in the requests? 

Mr. EPP. So, we have seen a change in terms of in 2017 and 

2018. We had approximately 1,000 more requests each year than 

we had in the prior year. We have also seen that those requests 

have been concentrated more in the Office of the Administrator. 

One year it was 368 percent more than year 2016, and the other 

year it was 415 percent more than that base year of 2016. 

We have the data to look at particular requesters. I have not broken that out. I have not done an analysis of that. 

Mr. HICE. Are you able to? 

Mr. EPP. We would be able to. 

Mr. HICE. Would you get that back to us? Just out of curiosity. 
15 

Mr. EPP. We can work with the committee on those sorts of requests. 

Mr. HICE. Okay, thank you. 

What about complex requests? Are you seeing an increase in the 

complex? 

Mr. EPP. We have noticed, at least particularly in the Office of 

the Administrator, some increase in complexity in a number of different ways, requests that ask for all communications, for example, 

without any narrowing of it, as well as requests that have multiple 

subparts and that as a result produce large document collections 

that we must review. 

Mr. HICE. Have those complex requests increased with the 

Trump Administration? 

Mr. EPP. We have noticed that increase over time, in particular 

over the last couple of years. 

Mr. HICE. Okay. Can you give me some examples of the numbers 

of responsive records in a complex? What are we talking about? 

Mr. EPP. So, we have one particular request right now that we 

have been in the process of assembling, collecting the documents 

for it. We have not completed that collection, but right now the 

workspace in the Relativity document review software has over 

139,000 documents in it. And, of course, that is not pages; that is 

documents. Each document will have multiple pages. So we are 

talking about a very substantial amount of material to review for 

that particular request. 

Mr. HICE. Okay. So a quick comparison—I am running out of 

time here. How long does it take, on average, just to do a simple 

FOIA versus a complex request? 

Mr. EPP. So, our simple FOIA requests, as I have mentioned, approximately 60 percent of the requests we respond to within the 

20-day time period. Our other requests, like I mentioned we have 

a significant backlog, and some of those are months and/or years. 

Mr. HICE. Okay. Thank you very much. 

I yield back, Mr. Chairman. 

Chairman CUMMINGS. Mr. Lynch? 

Mr. LYNCH. Thank you, Mr. Chairman and Ranking Member, for 

holding this hearing. I do want to say thank you to the distinguished panel for helping the committee with its work. 

Ms. Pustay, the committee, along with a number of outside public interest groups, have been involved in a national security review 

of multiple whistleblower reports that describe a concerted effort 

inside the White House to transfer highly sensitive nuclear technology to Saudi Arabia. This sudden behind-the-scenes scramble to 

transfer sensitive technology to a foreign nation without informing 

Congress, without engaging in dialog with us, without congressional review, would constitute a dangerous and blatant violation 

of the Atomic Energy Act. 

So, the interim report that was issued by Chairman Cummings’ 

staff last month underscored that one of the chief proponents of 

this so-called Middle East Marshall Plan was former National Security Advisor Michael Flynn, who obviously pleaded guilty to providing false information to the FBI regarding his foreign contacts, 

and other former and current Trump associates at the White House 

who have been involved in this allegedly to push the Saudi Arabia 
16 

nuclear transfer: Thomas Barrack, who was President Trump’s Inaugural Committee chairman; and also Jared Kushner, the President’s son-in-law, and also a senior advisor to the President. 

We have as a committee FOIA requests in and requests directly 

to seven different agencies. As well, the Government Accountability 

Project—they do great work—they have requests in to the Department of State, Department of Defense, the Central Intelligence 

Agency, Department of Commerce, Department of Energy, and the 

Treasury Department. We have requests in to those agencies, as 

well as the White House. 

So far, we got zero—zero—nothing from any of those agencies, 

nothing from the White House. 

So your mission, as you described it, is really to provide information that the American people should know, and this is certainly 

within that ambit. I am just wondering what your reasoning or 

what your thinking might be for why, with all these requests on 

such an important issue, we have zero from the White House and 

zero FOIA responses from all of those agencies, seven of them. 

Ms. PUSTAY. Well, I cannot speak to any particular individual 

FOIA request because I do not know any of the background as to 

their handling. Our—— 

Mr. LYNCH. But any document at all. I understand that you can 

pick and choose, say this is sensitive or we cannot do this, come 

up with a reason. They have not given us a reason, either. So we 

basically got silence from seven agencies and the White House. 

Ms. PUSTAY. Well, again, I just do not have any background on 

the handling of those individual requests. I am happy to look into 

it for you, if you would like. Our mission, our statutory mission is 

to encourage compliance with the FOIA, just to correct the articulation of that, and we do a number of things to help make sure that 

agencies are trained to be able to understand their legal obligations 

under the FOIA, that they have guidance from us as to ways to improve their administration of the FOIA. We share best practices, 

we encourage use of technology. All of those things are part of how 

we carry out our statutory—— 

Mr. LYNCH. Okay, I understand, I understand. That is the same 

answer you gave to everybody else. 

So, last month the non-partisan government watchdog organization, Citizens for Responsibility and Ethics in Washington, actually 

filed suit on behalf of the Government Accountability Project to 

seek those documents, to get the answers to their FOIA requests. 

According to the complaint, all those Federal agencies involved 

have now gone silent, failing to engage in any further communication. 

So this is not simply an unwillingness to give us the documents. 

It is an unwillingness to respond. Is that consistent with your understanding of how they should be conducting their—— 

Ms. PUSTAY. I cannot speak, obviously, to the particular request 

and the responses that you have gotten or that the requester got 

from those particular agencies. What I can tell you is that, of 

course, our guidance to agencies is to acknowledge requests. Every 

requester is entitled under the statute to have a tracking number—— 
17 

Mr. LYNCH. Could you encourage them to respond? Could you encourage them to respond? That would be great. That would help. 

Ms. PUSTAY. I certainly can. 

Mr. LYNCH. Thank you. 

I yield back. 

Chairman CUMMINGS. Mr. Comer, five minutes. 

Mr. COMER. Thank you, Mr. Chairman. 

I wanted to focus my questioning on the Department of the Interior. So, Ms. Spector, how many individuals specifically work on 

FOIA at the Department of the Interior? 

Ms. SPECTOR. I do not have that information at this time. Part 

of my mission in the newly created departmental FOIA office is to 

get my arms around that information and to understand whether 

our FOIA offices are adequately staffed. 

Mr. COMER. Okay. Does each bureau at the Department of the 

Interior have its own FOIA office? 

Ms. SPECTOR. Well, it is interesting that you ask that question. 

The Secretary’s order that I referred to in my opening statement 

requires all of the bureaus to have a FOIA officer. So my understanding and belief is that FOIA processing occurs at all of our 

component bureaus, and we are looking to elevate the position of 

the people that do that work. 

Mr. COMER. Have you determined whether you are adequately 

staffed to handle the FOIA requests that are coming in at DOI? 

Ms. SPECTOR. I could say quite frankly we are not adequately positioned to do that work at this time, and staff is only one component of what I believe we need to do to improve our FOIA program. 

We also need to make improvements in our technology, as well as 

improving our standard operating procedures and policies. 

Mr. COMER. Roughly how many FOIA requests did you get in 

2018? Do you know? At the Department of the Interior. 

Ms. SPECTOR. You know, I am embarrassed to say I do not know 

the answer to that question. I am sure my staff has it on their fingertips and will happily provide that. 

Mr. COMER. So you would not know how the number of FOIA requests in 2017 and 2018 under the Trump Administration would 

compare to the number of FOIA requests that you received during 

the Obama Administration? 

Ms. SPECTOR. I would be able to answer that question, sir. Since 

Fiscal Year 2016, the Department overall has experienced a 30 percent increase in incoming FOIA requests, similar to what my colleague from EPA attested to. The Office of the Secretary FOIA Office has been particularly hard hit with a 210 percent increase during that period. 

Mr. COMER. Do you know where these increases are coming from, 

which particular groups? Are they advocacy groups? Are they private citizens? Media? Do you have any idea? 

Ms. SPECTOR. I could speculate on that point, but I would underscore that the Department is not concerned with who the FOIA requests are coming from. I mean, we endeavor to respond in a timely, comprehensive manner to all requesters regardless of their identity. 

Mr. COMER. Do you prioritize the FOIA requests when they come 

in? For example, if it is a major news network, is that pushed 
18 

ahead of the stack or behind the stack compared to if it is a FOIA 

request from a citizen in Montana? 

Ms. SPECTOR. Well, as a general matter, we process FOIA requests on a first-in/first-out basis, and there are certain provisions 

in the FOIA that provide for expedited processing, and also provide 

for a fee waiver for requesters who qualify as representatives of the 

news media. We apply the provisions of the FOIA accordingly. 

Mr. COMER. On average, how long does it take when you get a 

FOIA request to be able to review and respond to the request? 

Ms. SPECTOR. Well, the answer is more nuanced in that we process our incoming requests pursuant to track. There is a simple 

track, a normal track, a complex track, complex being the requests 

that are likely to result in the collection of large amounts of documents. For example, requests that are in our simple track, by our 

own policy, we endeavor to respond to within five working days. 

Mr. COMER. Do you track with requests of—if this is the same 

person doing a FOIA request every day? Are they red flagged? How 

does that work? I know in the past I have been—a previous job before I came here was harassed by political opposition groups, 

bloggers, things like that. I did not know whether there was a system in place to determine the validity of the person requesting the 

FOIA request. 

Ms. SPECTOR. No, sir. And again, we do not process our requests 

based on the identity of the requester. I would say we have a substantial number of what we call frequent flyers, and we process 

their requests on a first-in/first-out basis. 

Mr. COMER. Thank you. 

Chairman CUMMINGS. The gentleman’s time has expired. Thank 

you. 

Mr. Rouda? 

Mr. ROUDA. Thank you, Mr. Chairman. 

Mr. Epp, there are about 1,700 FOIA requests outstanding from 

the most recent report. That actually puts EPA in the bottom 10 

percent. Is this a resource issue, a manpower issue, or both? 

Mr. EPP. That is a topic that we are currently analyzing, and 

that is part of the reason for the reorganization of the National 

FOIA Office, to create a centralized office to take a look at those 

sorts of issues. 

One of the things that we have recently done that we did within 

the last calendar year was upgraded the document review processing software to add certain features that will increase the ability 

to review similar documents together. 

Mr. ROUDA. So is it a resource issue, then, or a manpower issue? 

I mean, if you had enough people and resources, we could clear this 

up pretty quickly, right? Or if it is a process issue, that tends to 

be a lack of management and leadership issue. So which one is it? 

Mr. EPP. The agency has dedicated more resources to FOIA processing this year, including authorizing increased hiring in my office. We have just on-boarded those new hires, new hiring in the 

Administrator’s Office, and standing up a Tiger Team of document 

reviewers in the Administrator’s office. So we are dedicating more 

resources to the effort, and part of what I am doing is trying to 

analyze exactly how much of it is resource issues, how much of it 

is processing issues and things like that. 
19 

Mr. ROUDA. Well, we are a few years into the Administration, so 

hopefully that will happen soon. But let me ask you this: President 

Trump’s budget with a 31 percent cut in the EPA, do you support 

that cut? 

Mr. EPP. Like I said, the agency dedicated more resources to 

FOIA in the last—— 

Mr. ROUDA. But you have a limited budget. Do you support the 

31 percent cut to the EPA? 

Mr. EPP. Our—— 

Mr. ROUDA. Do you support the 31 percent cut to the EPA? 

Mr. EPP. We will work with Congress to implement the budget 

that you pass. 

Mr. ROUDA. But do you support the President’s 31 percent cut to 

the EPA? 

Mr. EPP. We will work with Congress on the budget that Congress passes. 

Mr. ROUDA. I also note that you have over 800 openings in the 

EPA that have not been filled. If those seats were filled, would that 

not help address this issue? 

Mr. EPP. So, I do not have oversight or vision on all of the hiring 

needs and where the hiring is across the agency. If that is something that you would like a response on—— 

Mr. ROUDA. My concern is that there are roughly 14,000 employees at the EPA; 8,000 of them are eligible for retirement through 

2021. So you take that, coupled with the 800-plus open seats, I cannot help but think that the EPA could meet many of its obligations, 

including FOIA requests, if it was properly staffed up according to 

the ability it has, not to mention with all of these potential retirements. Is the EPA prepared to hire people so it can meet its obligations. 

Mr. EPP. So, like I mentioned, within my office we were authorized to hire, and we completed hiring over the last year and are 

now—— 

Mr. ROUDA. So if you were authorized to hire more individuals 

that could manage the FOIA requests, you could definitely address 

the backlog; correct? 

Mr. EPP. We on-boarded and are currently on-boarding some of 

those hires. You know, with any hiring initiative there is also a 

training-up time, an integration—— 

Mr. ROUDA. Again, we are two years into the Administration. We 

have 1,700 FOIA requests that have not been met. So if people 

were hired, it seems like that would solve the problem. 

I also want to call your attention to last year the Republican and 

Democratic staff on this committee interviewed EPA Chief of Staff 

Ryan Jackson, who stated—in talking about a specially created 

team he said, ‘‘Politically charged FOIA productions.’’ 

Is there a special team or any version of it that is still existing 

at the EPA that is reviewing these types of FOIA requests? 

Mr. EPP. So, the FOIA Expert Assistance Team is in my office, 

and their charge since 2013 has been to work on the most challenging, complex, and high-profile FOIA requests that the agency 

receives, including such things as Bristol Bay, Gold King Mine—— 

Mr. ROUDA. Do you personally review them? 

Mr. EPP. Yes. 
20 

Mr. ROUDA. So they all come—basically, the buck stops with you? 

You personally make the decision? 

Mr. EPP. That team I review and I supervise, yes. 

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

Chairman CUMMINGS. Mr. Gosar, five minutes. 

Mr. GOSAR. Thank you, Mr. Chairman. 

I thank the Chairman for having this hearing on FOIA. But I 

also find it odd that my friends across the aisle are complaining 

about the FOIA requests when this Administration was able to reduce some of the FOIA backlog by 3.2 percent. I do not remember 

hearing anything when groups were sending FOIA requests to the 

Obama Administration on the IRS scandal, Benghazi, Fast and Furious, and the list goes on, not a peep. Since my friends across the 

aisle have a newfound respect for FOIA, I ask them to join me in 

urging the DOJ to release the requested FOIA documents to groups 

like Judicial Watch that have requested documents that deal with 

the IRS scandal, Fast and Furious, all the documents reporter 

Sharyl Attkisson has requested that deal with the Obama Administration spying on her, and the FISA warrants used to spy on Carter Page. If my friends across the aisle truly care about transparency, they would join me in pressuring the DOJ to release the 

requests of FOIA documents; unless, of course, this is a charade 

and they only care because it is Donald Trump as the president. 

Ms. Spector, I did not hear the answer. Did some of the FOIA 

officers at the DOI attend trainings offered by the Office of Government Information Services? 

Ms. SPECTOR. I do not know specifically, but I suspect that is the 

case, yes. 

Mr. GOSAR. Their mantra is Working Smarter, Not Harder. So 

sometimes an educational process of how to actually triage things, 

that might be a very helpful application. 

Let me ask you another question. Can you give me a little bit 

more idea of specifically what type of FOIAs are coming in? Have 

they changed in nature? Are they more from news agencies? Are 

they more complex in litigation? Can you give me a breakdown of 

how that maybe has changed over the last two years? 

Ms. SPECTOR. Yes. And again, I cannot really speak to the identity of FOIA requesters, but I can tell you that since Fiscal Year 

2015 our amount of complex FOIA requests—that is, requests that 

will result in the production of a large amount of documents and 

records—has gone up 55 percent. 

Mr. GOSAR. So even with a very enabled work force, that kind 

of change for complexity makes it very hard to comply, would it 

not? 

Ms. SPECTOR. It is part of the challenge that we face. It is a large 

part of the challenge that we face at Interior. Another related challenge is that because we are not able to provide timely responses 

to a large number of FOIA requesters, we have engendered a substantial increase in what we call FOIA non-response litigation 

where the requester is suing not based on an alleged illegal withholding but simply because we have not responded in a timely 

manner, and that produces a snowball effect on our situation because those cases are essentially glorified FOIA processing under 

the auspices of the court, and we are under increased pressure to 
21 

move those requests to the front of the line, which further impacts 

the rest of the FOIA requesters. 

Mr. GOSAR. So is there some way—you know, when we are on 

a battlefield, we have a triage-type system. Is there a way to look 

at these documents as they are coming in that could actually facilitate a better triage allocation where you may be having somebody 

monitoring the atmosphere at the time of discovery that maybe 

puts a kind of emphasis or a highlight on an issue, that maybe 

somebody is reviewing these at the front end that may speed up 

that system? Is there some type of triage system that could work 

along those lines? 

Ms. SPECTOR. Yes, and that is certainly part of the comprehensive effort that we are endeavoring to employ at the Department. 

We are using a more expensive technology to process these large 

requests. That technology also enables us to leverage requests that 

are for the same or similar types of documents. And we are trying 

to focus more in our processes and protocols on meeting our commitment under the FOIA. 

Mr. GOSAR. Yes. And, Mr. Epp, real quickly, I am glad that you 

made the comment about the budget, because the budget is our 

deal. Allocation of funds is Congress’ deal. So we ought to be the 

ones stepping up and doing that process forwardly. 

Thank you, Mr. Chairman. 

Chairman CUMMINGS. Ms. Cortez? 

Ms. OCASIO-CORTEZ. Thank you, Mr. Chair. 

Ms. Pustay, as Director of Information Policy, you review the 

various reports that agencies prepare as part of their FOIA responsibilities; correct? 

Ms. PUSTAY. Right. 

Ms. OCASIO-CORTEZ. Do you agree that it is important for all of 

us to have current information on the agency compliance with 

FOIA? 

Ms. PUSTAY. Of course. 

Chairman CUMMINGS. Keep your voice up. 

Ms. PUSTAY. Sure. 

Ms. OCASIO-CORTEZ. And I think that is why we agree that is 

why Congress added these requirements that agencies report data 

by certain deadlines each year. In fact, the law requires agencies 

to provide the annual report on FOIA to DOJ by February 1st. 

Today is now March 13th. It is six weeks past the reporting deadline. 

My question to you is how many agencies have provided their reports to the DOJ by February 1st? 

Ms. PUSTAY. Oh, this year is quite the anomaly in terms of reporting for a very obvious reason. We had a government shutdown 

that lasted more than 35 days. All of OIP was furloughed for 35 

days. So we have an extensive process where we clear the annual 

FOIA reports from agencies and work with them to get the reports—— 

Ms. OCASIO-CORTEZ. So—— 

Ms. PUSTAY. So there is necessarily a delay this year. But I am 

happy to tell you we have almost—over 90 reports have already 

been cleared for—— 
22 

Ms. OCASIO-CORTEZ. So 90 reports have been cleared. Great. And 

it is completely understandable that the shutdown would delay 

that. That is why we try to avoid shutdowns. 

Do you know how many outstanding reports have missed that 

deadline? 

Ms. PUSTAY. Oh, sure. We have been working with all the agencies to catch up on their work and their reporting to us, and we 

fully expect to have all the reports posted actually fairly soon. 

Ms. OCASIO-CORTEZ. Okay, great. So has the DOJ made every 

annual report it has received so far from an agency available on 

its website? 

Ms. PUSTAY. When we clear our reports, after we have done our 

review, the agency has to prepare their report for posting, and that 

requires a process of coding the document. As soon as the agency 

posts the document, then we in turn link it to our central website 

on DOJ’s website. So we are literally posting reports as we speak. 

Ms. OCASIO-CORTEZ. Thank you. Okay, and that is great. Good 

to know that that process is on its way. 

Mr. Epp, the EPA just posted its report yesterday. When did you 

provide that report to the DOJ? 

Mr. EPP. So, I do not recall when we provided the first draft of 

the report to DOJ. 

Ms. OCASIO-CORTEZ. Okay. 

And, Ms. Pustay, what is DOJ doing to ensure that the agencies 

are making these annual reports accessible to the public in a timely manner? 

Ms. PUSTAY. Right. As I said, this year is quite the anomaly. I 

think if you looked back at any of the other years, we are very 

proactive in terms of reaching out to agencies, and we have really 

quite a refined process now. It is not an issue at all in a normal 

year. 

Ms. OCASIO-CORTEZ. And that is good to know. 

One of my questions, too, is what would DOJ do if an agency 

simply refused to provide the annual report? 

Ms. PUSTAY. That has not been a problem at all. Agencies work 

with us very well and they are fully aware of their obligation to 

get their annual report in to us. 

Ms. OCASIO-CORTEZ. Are there any consequences in case that 

does happen? 

Ms. PUSTAY. It is a hypothetical that really I am not worried 

about because we have no issue with getting the reports from the 

agencies. We work with them, and then we get them posted every 

year. 

Ms. OCASIO-CORTEZ. All right, great. Thank you very much. 

I yield my time. 

Chairman CUMMINGS. Mr. Higgins? 

Mr. HIGGINS. Thank you, Mr. Chairman. 

Mr. Chairman, the Committee on Oversight and Reform majority 

seems to be attempting to imply that the Trump Administration is 

opaque and closed off to Freedom of Information Act requests, 

whereas actual data shows that the President’s administration has 

been very responsive to the record number of FOIA requests and 

is actively working to reduce the nearly 10-year Freedom of Information Act backlog at some agencies. 
23 

Ms. Pustay, OIP found that the government received a record 

number of FOIA requests in 2017; correct? 

Ms. PUSTAY. Yes. 

Mr. HIGGINS. In fact, can you clarify for Americans watching that 

the government received over 818,000 FOIA requests in 2017 

alone, an incredible increase from 2016 in number? This was the 

first year, in fact, that the government received over 800,000 requests. Is that correct? 

Ms. PUSTAY. That is correct, and we are on track, I think, to far 

exceed that number for Fiscal Year 2018. 

Mr. HIGGINS. And how have you managed to deal with such a 

volume of requests? Were you and your staff surprised at the number of FOIA requests that has been received since President Trump 

took office? 

Ms. PUSTAY. Well, the increase in incoming FOIA requests has 

actually been taking place over quite some time, a much longer 

time than two years. 

Mr. HIGGINS. The backlog was 10 years? I do not mean to interrupt you but just to clarify for those watching. The backlog was— 

you had about a 10-year backlog? 

Ms. PUSTAY. No. What I am saying is that the increase in incoming requests has been occurring steadily over the years, and each 

year agencies are really struggling to try to meet that increased demand and increasing their processing, only to see the following 

year even more requests coming in. I think I attribute it to just an 

increased interest in using the FOIA as a means of becoming more 

engaged with their government. 

Mr. HIGGINS. Thank you for that clarification. Despite the number of requests that have been received since 2017, since the President took office, am I also correct in saying that the government 

has processed more FOIA requests than they received, and that the 

number of backlogged requests has actually decreased? 

Ms. PUSTAY. The numbers you are referring to are from Fiscal 

Year 2017, which is where we have our last governmentwide numbers. And, yes, in Fiscal Year 2017 the government overall reduced 

the backlog, which was a nice accomplishment, and increased its 

processing. 

As I mentioned, agencies are doing a lot to increase their processing to keep up with the demand of the public for information 

from the government. 

Mr. HIGGINS. So you feel confident confirming to America today, 

Madam, that agencies are making an effort, a good-faith and determined effort to process FOIA requests and reduce backlogs? 

Ms. PUSTAY. Agencies are definitely making a good-faith effort to 

process the overwhelming number of requests that are coming in 

every day. 

Mr. HIGGINS. Thank you, Madam. 

Ms. Spector and Mr. Epp, thank you for your service to your 

country and appearing before the committee today. 

Mr. Chairman, since January 2017, there has been quite an orchestrated effort to obstruct and resist our duly elected President’s 

administration, an incredibly active movement nationwide, and 

Americans that I have spoken to look at the number of FOIA requests as perhaps a legitimate tool that should be available in a 
24 

representative republic of sovereign states that has perhaps been 

weaponized against our current executive. 

I yield my remaining 50 seconds to the Ranking Member. 

Mr. JORDAN. I yield back. 

Chairman CUMMINGS. Ms. Plaskett? 

Ms. PLASKETT. Thank you, Mr. Chairman, and thank you for 

holding this hearing. 

Ms. Pustay, the Office of Legal Counsel is responsible for providing legal advice to the executive branch. Is that correct? 

Ms. PUSTAY. Yes. 

Ms. PLASKETT. Otherwise known as OLC. And that advice is usually given through memorandum, is it not? 

Ms. PUSTAY. I do not know if I want to characterize that it is 

usually given through memorandum. 

Ms. PLASKETT. But there are memorandum that are done? 

Ms. PUSTAY. Yes. 

Ms. PLASKETT. And those memorandum really outline what the 

Office of Legal Counsel’s opinions are with regard to specific issues 

that the executive branch may be requesting. 

Ms. PUSTAY. They provide legal advice, yes, exactly. 

Ms. PLASKETT. DOJ, the Department of Justice, generally considers OLC advice to be binding on those agencies. Is that correct? 

Ms. PUSTAY. No, I do not think that is correct. OLC provides 

legal advice to agencies, who then incorporate that advice into their 

decisionmaking. 

Ms. PLASKETT. Okay. So it does not bind an agency to the advice. 

Ms. PUSTAY. They give legal advice to an agency. 

Ms. PLASKETT. Got you. And with that, there does, however, 

seem to be a secrecy with regard to OLC memos, which have long 

been the subject of controversy in terms of them being available to 

the public. Would you say that that is correct? 

Ms. PUSTAY. No. I understand that the public is very interested 

in OLC memorandum, and OLC understands that public interest 

as well, and they have an established publication review process 

where they review their memorandum and post those that they can 

on their website. 

Ms. PLASKETT. So how many memorandum per year would you 

say that they produce? 

Ms. PUSTAY. I do not know about per year, but I know—— 

Ms. PLASKETT. On average? 

Ms. PUSTAY. Well, they have over 1,000 OLC opinions on their 

website. 

Ms. PLASKETT. Well, that is going back 20 years, 30 year or so. 

Ms. PUSTAY. It is quite a nice—— 

Ms. PLASKETT. But what would you say per year is the average 

of opinions that they write? 

Ms. PUSTAY. I am sorry, I just do not have it. 

Ms. PLASKETT. Would you be surprised to understand that there 

are over 200 OLC opinions which have not been released? 

Ms. PUSTAY. No, it does not surprise me because, as I said, OLC 

opinions are legal advice to an agency. So they are protectable 

under the FOIA—under the attorney—— 

Ms. PLASKETT. So if the advice is taken and the Administration 

acts on that advice, how about releasing an opinion from 2003, 
25 

going back 15 years, which has already been enacted? Would that 

chill or inhibit discussion taking place in the government by not releasing that information at this time? 

Ms. PUSTAY. The age of the opinion and the circumstances surrounding the topic that is addressed in an opinion would definitely 

be factors that would be looked at. All of that is actually laid out 

by OLC in their procedures for publishing their opinions. 

Ms. PLASKETT. So if the concern is for the public to get that information which may be deliberation that OLC has had, or whether 

or not positions are factors involved in making decisions and legal 

advice, some of the opinions have already been published, or 

through leaked opinions online. But DOJ still asserts that those 

opinions are privileged and cannot be released. 

What would inhibit the DOJ from releasing opinions which are 

already out there so that the public can be sure that the opinions 

which have been leaked are, in fact, the opinion of DOJ? 

Ms. PUSTAY. Well, we have very strong protection for information 

that is covered by a discovery privilege like the attorney-client 

privilege. Courts have recognized that that applies after the advice 

has been given, and it would certainly be—— 

Ms. PLASKETT. Even after it has been acted upon or has been 

changed and the Administration is no longer using that opinion? 

What would be the reason for withholding it at that point? 

Ms. PUSTAY. The contours of the attorney-client privilege, as well 

as the deliberative process privilege, another primary reason why 

OLC opinions are protected—— 

Ms. PLASKETT. I know that can take me a whole other five minutes of questioning if we discussed the deliberative process privilege. 

Ms. PUSTAY. There was a case that went to the Supreme Court 

actually early in my FOIA career involving deliberative process 

privilege, and the very issue presented was when a decision is over, 

does the deliberative process privilege fall away, and it is actually 

an issue that went all the way to the Supreme Court, which ruled 

that, no, the privilege protection continued on. And the point 

that—— 

Ms. PLASKETT. That is not to say that DOJ does not release opinions. All of the opinions involve some deliberative process; correct? 

Ms. PUSTAY. Yes, yes. 

Ms. PLASKETT. So you do release some and not others. 

Ms. PUSTAY. Yes, absolutely. 

Ms. PLASKETT. So the factors that you are using have nothing to 

do with the deliberative process as a theory, but other factors that 

you have determined whether or not the import of what is in that 

opinion—— 

Ms. PUSTAY. I think the OLC lays out in the guidance on their 

website the factors that they look at to make releases of opinions, 

and obviously a big part of that is the public interest in the topic. 

Ms. PLASKETT. I yield back. Sorry. 

Chairman CUMMINGS. Thank you. 

Mr. Jordan? 

Mr. JORDAN. Thank you, Mr. Chairman. 

Ms. Pustay, I will go back to where Mr. Higgins was. How many 

FOIA requests governmentwide were there in 2017? 
26 

Ms. PUSTAY. Over 800,000. 

Mr. JORDAN. Over 800,000. And is that more than the requests 

in 2016? 

Ms. PUSTAY. Yes. 

Mr. JORDAN. How much more? 

Ms. PUSTAY. We have a chart in our—we have a summary that 

we create every year of annual FOIA reports, and we have all the 

numbers there. I think if you look at the chart you see a nice 

steady incline of incoming FOIA requests really starting since 

2009. 

Mr. JORDAN. And I am looking at that chart right now. 

Ms. PUSTAY. Okay. 

Mr. JORDAN. It looks to me in 2016 there were 788,000, and in 

2017 818,000, 40,000 more FOIA requests governmentwide in 2017. 

Ms. PUSTAY. That sounds right. 

Mr. JORDAN. All right. So more requests, trending up, has been 

trending up, but obviously 40,000 more just in the first year of the 

new administration. And what about the backlog? What happened 

with the backlog of requests that was there? Did that—— 

Ms. PUSTAY. Well, in Fiscal Year 2017 the backlog did go down 

by, I think, 3 percent. That was primarily due to the efforts of DHS 

in reducing its backlog. The backlog governmentwide is really attributable to a few of the really big agencies that get incredibly 

large volumes of requests. 

Mr. JORDAN. DHS and Justice? 

Ms. PUSTAY. DHS, Justice, State. Again, we have that in our 

summary. 

Mr. JORDAN. Okay. But overall—— 

Ms. PUSTAY. But overall there was a reduction. 

Mr. JORDAN. Overall 40,000 more requests in 2017, and a reduction in the backlogs that had been present, in overall backlogs. 

Ms. PUSTAY. Overall. 

Mr. JORDAN. So it is an improvement. 

Ms. PUSTAY. That is right. 

Mr. JORDAN. Now, that is not to say every agency is doing wonderful. There may need to be improvement in some specific agencies, but overall that is pretty good for government. 

Ms. PUSTAY. Well, I think especially with backlogs. There were 

85 agencies that had a backlog of 100 or less. So when you think 

across the government, the issue of backlogs is a quite different 

picture and I think a very positive picture for many agencies. 

Mr. JORDAN. Of that 40,000, which agencies had the biggest increase? It was the ones you said before? It was State, Justice, and 

DHS? 

Ms. PUSTAY. Yes. 

Mr. JORDAN. That is where the biggest increase happens? 

Ms. PUSTAY. Yes. 

Mr. JORDAN. Okay. And were those the same agencies that had 

the largest backlog, or not? 

Ms. PUSTAY. Yes. Usually there is an exact and understandable 

relationship, absolutely. 

Mr. JORDAN. Okay. And is there a reason why we saw 40,000 

more? Did you analyze the data? Is there any reason why there 

was 40,000 more requests in the first year? 
27 

Ms. PUSTAY. We have been looking at this issue for many years, 

and as I mentioned before to one of your colleagues, the best I can 

come up with is that I think there is a lot of interest in the public 

in what the government is doing, and so as a result there is an increase in FOIA requests. 

Mr. JORDAN. For a government that is as big as our government, 

unfortunately. I wish it was smaller in many ways. If you have big 

government, there are going to be people interested in looking at 

it and asking for information. 

How does 2018 look? When are we going to get those numbers? 

Ms. PUSTAY. We will get those numbers shortly. As I was discussing, we are in the process of finalizing the intake of the annual 

FOIA reports, and then we will be able to—— 

Mr. JORDAN. Can you give me a preliminary assessment? 

Ms. PUSTAY. My prediction is that there definitely is going to be 

yet another increase in incoming—— 

Mr. JORDAN. I figured. 

Ms. PUSTAY [continuing]. incoming requests. I am hopeful that 

we will have an increase in processing, because the challenge for 

agencies is to try their best to keep up. And then I am predicting 

that the backlog might increase as well, as a result of the increase 

in incoming. 

Mr. JORDAN. Do you think the increase in 2018 is going to be 

more than the 40,000 we saw in 2017? 

Ms. PUSTAY. I do not—I just am not sure yet. 

Mr. JORDAN. When will we get those again? 

Ms. PUSTAY. Soon, relatively soon. As I said, we have over 90 

agencies where we have the numbers cleared, so within the next 

month or so we will have our figures, and then we will post them 

like we normally do with a summary. 

Mr. JORDAN. If the backlog—you said the backlog may not be an 

improvement like it was in 2017. It may trend the other way. 

Ms. PUSTAY. Yes. 

Mr. JORDAN. Is it a small increase? What is your—— 

Ms. PUSTAY. I am predicting probably a larger increase. Again, 

this is just a prediction because we do not have the numbers yet. 

Once we have the summary and have the numbers, obviously we 

are going to post them on our website like we always do. 

Mr. JORDAN. I forgot. I was going to yield to my friend. I will 

yield what remaining time I have. 

Mr. MEADOWS. I thank the gentleman. 

One question, Ms. Pustay. You said you keep track of how people 

respond. Do you have agency by agency the budget they spent on 

FOIA and the number of pages that they actually get out the door 

so we can tell how efficient an agency is? 

Ms. PUSTAY. We do not keep track of the number of pages, but 

we do keep track—every agency reports in their annual FOIA report their costs and the personnel that are used every single year 

for FOIA. So that is in every agency’s annual FOIA report. You can 

look back many, many years, and we summarize that in our summary as well. 

Chairman CUMMINGS. Thank you very much. 

I will now ask a few questions. 
28 

Ms. Spector, significant concerns have been raised about the lack 

of transparency of meetings held by Acting Secretary David Bernhardt. On February 20, 2019, Mr. Bernhardt sent a letter to Natural Resources Committee Chairman Raul Grijalva, and this is 

what he said, and I quote: ‘‘I have inquired with the Department 

of Interior’s Office of the Solicitor and have been advised that I 

have no legal obligation to personally maintain a calendar. Further, no agency guidance exists recommending that I create or retain one. I have not personally maintained a calendar for years, 

and I have no intention of suddenly doing so now.’’ Did you hear 

me? End of quote. 

Is this true? Does Acting Secretary Bernhardt not keep a calendar of his meetings and activities? 

Ms. SPECTOR. I was not involved in providing legal advice around 

this issue, but I am aware that Acting Secretary Bernhardt’s calendars, there are calendars that we proactively post on our 

website, just as we did with Secretary Zinke’s calendars, because 

the public is interested in that information, and we received more 

than three FOIA requests for that material. So we proactively post 

it on the website. 

Chairman CUMMINGS. Well, Acting Secretary Bernhardt also 

wrote, and I quote: ‘‘Numerous people create calendar entries on 

what can be labeled my calendar to maintain a schedule for the organization of daily appointments, both personal and official.’’ End 

of quote. 

How are appointments added to the Secretary’s schedule? Do you 

know? 

Ms. SPECTOR. I am speculating. I think it is probably pretty accurate. I assume that his administrative assistant and other support 

staff provide that function for him. 

Chairman CUMMINGS. So who at the Department has the ability 

to add appointments to the schedule of the Acting Secretary? Do 

you know? 

Ms. SPECTOR. I am sorry, there was movement in the back and 

I did not clearly hear what you said. 

Chairman CUMMINGS. Who at the Department has the ability to 

add appointments to the schedule of the Acting Secretary? 

Ms. SPECTOR. I am familiar with a process of—— 

Chairman CUMMINGS. You do not know? 

Ms. SPECTOR. I do not know. Thank you, sir. 

Chairman CUMMINGS. Does the calendar for the Acting Secretary 

get deleted at the end of each day? Do you know that? 

Ms. SPECTOR. I do not know that. 

Chairman CUMMINGS. Is it possible this is happening and you do 

not know about it? That is, the deletion of the calendar or the entries. 

Ms. SPECTOR. I have some familiarity with the issue that you are 

raising and understand that the Solicitor’s Office in the Department is working with the records officer in the Department to determine what has occurred there and whether it is consistent. 

Chairman CUMMINGS. How long have you been in the position 

here? 

Ms. SPECTOR. I am sorry. Say that again? 
29 

Chairman CUMMINGS. How long have you been in the position 

you are in? 

Ms. SPECTOR. For two months, sir. 

Chairman CUMMINGS. Okay. Has any Interior employee ever 

been tasked with recreating the calendar of the Acting Secretary 

by piecing together drafts of Googled documents or using other 

records of meetings? 

Ms. SPECTOR. Not to my knowledge. 

Chairman CUMMINGS. Has any Interior employee ever been told 

to stop recreating the calendar of the Acting Secretary? 

Ms. SPECTOR. Again, not to my knowledge. 

Chairman CUMMINGS. How do you respond to FOIA requests for 

information about meetings attended by Acting Secretary Bernhardt? 

Ms. SPECTOR. Precisely the way we do all FOIA requests. They 

are processed as a general matter on a first-in/first-out basis, and 

one distinction with calendars is that there has been so much public interest in those materials for our senior officials that many are 

posted, affirmatively posted on our website. 

Chairman CUMMINGS. So whose records do you search to respond 

to requests about the Acting Secretary’s calendar? 

Ms. SPECTOR. I am sorry. Again, I did not hear. 

Chairman CUMMINGS. Whose records do you search to respond to 

requests about the Acting Secretary’s calendar? 

Ms. SPECTOR. Again, I do not specifically know the answer because I have not performed that task, but I assume that it is his 

electronic calendar entries that are prepared by his administrative 

staff. 

Chairman CUMMINGS. All right. CNN reported last week that the 

calendars posted on the website of the Department of the Interior 

are missing information. For example, a meeting on the schedule 

posted for Acting Secretary Bernhardt for September 22d, 2017 includes an entry that says, quote, ‘‘A meeting to discuss energy 

issues,’’ end of quote. It lists no visitors. However, CNN reported 

that Interior visitor logs showed that the Acting Secretary actually 

signed in Jack Gerard, then CEO of American Petroleum Institute. 

Are you aware of any other calendars or calendar entries on the 

website of the Department of the Interior Acting Secretary Bernhardt or any senior official that are missing information? 

Ms. SPECTOR. No, I am not. 

Chairman CUMMINGS. Every senior official, including Acting Secretary Bernhardt, should be making and preserving a transparency 

record of their meetings and other activities so that the American 

people know who is influencing policies. 

I yield now to Mr. Cloud for five minutes. 

Mr. CLOUD. Thank you. 

With all the talk about data, we had our team go ahead and compile it for you. And, yes, it does confirm what you are saying, a general upwards trend. The blue is the requests. The green is what 

has been processed since 2010. The red is what has been the backlog. And you can see that we are pretty much within norms, this 

Administration has been, with the trends. Actually, there has been 

some progress in the sense that more FOIA requests were proc-
30 

essed over the last year than were requested. I think that is good 

news. 

Really, the only outlier in the backlog generally has been 11 to 

15 percent, with the only outlier being the year following the IRS 

scandals when the IRS was targeting conservative groups. 

I think congratulations, I guess I would say, on the general picture of processing FOIA requests. I think there are some things 

that probably do need to be addressed or jobs to begin this kind of 

stuff. 

So, Deputy Chief Spector, your written testimony says that you, 

or the Interior Department I should say, proposed a change to 

apply monthly per-page processing limits to requests involving a 

large number of responsive records to allow processing of other requests. It is citing vast quantities of materials needed in some of 

these requests. Could you describe what is considered vast quantities? 

Ms. SPECTOR. Oh, absolutely. There is a 1990 D.C. Circuit Court 

opinion that coined the phrase ‘‘vast quantity’’ that we endeavored 

to codify in our proposed regulations. There is not a precise definition. I could not tell you precisely the number of pages that would 

qualify as a vast quantity, but since 1990 there has been a developed body of case law that has created the general parameters that 

surround vast quantity of materials, and to the extent this proposed change is incorporated into our final rule, we would look to 

the sideboards in that case law to make our determination. 

Mr. CLOUD. Okay. So as each case comes in, you are looking at 

case law? Is that what you are saying? To make the adjustment? 

Ms. SPECTOR. I am sorry, I did not hear you. 

Mr. CLOUD. You are looking at case law as each individual request comes in to determine? You do not have a benchmark I 

guess? 

Ms. SPECTOR. I guess what I am saying is that the vast quantity 

of materials does not lend itself to a precise number. 

Mr. CLOUD. Okay. If you do get a request that is requesting a 

large amount of information, how do you go about prioritizing requests just in general? But also if there is a large request and you 

have limited capacity, are you processing that request—like let’s 

say 1,000 pages would be considered a vast quantity, do you process a little of that every month? 

Ms. SPECTOR. Well, I will say that—— 

Mr. CLOUD. Do you say, oh, we are only going to do a portion of 

the big requests? 

Ms. SPECTOR. I will say that I do not believe that 1,000 pages 

is not a vast quantity. I think 1,000 pages is actually a pretty garden-variety quantity that we are encountering. 

But we have, in the context of our litigation, FOIA non-response 

litigation, we have applied a protocol where we process a certain 

number of pages each month in order to meet our obligations to all 

of the litigants. So we have 90 to 110 pending FOIA non-response 

cases, and all of those courts are asking us when are you going to 

get the request satisfied, and how many pages can you supply to 

the requester each month? So when we get a request that involves 

thousands of pages of documents, we make monthly episodic releases in order to get that. 
31 

Mr. CLOUD. Yes, that is what I was wondering. 

Ms. Pustay, the performance across the agency has been varied. 

Is there some sort of mechanism in place for developing best practices and communicating best practices across agencies? 

Ms. PUSTAY. Oh, sure. We do that in a whole bunch of different 

ways. We have a workshop series that we literally call our best 

practices workshop series where every year we identify a topic that 

we think is important to address, and we have agencies that have 

demonstrated success in that area on a panel where they can share 

their best practices in achieving success in that area. 

Our very first best practices workshop was on reducing backlogs 

and improving timeliness because that is always a perennial challenge—— 

Ms. HILL. 

[presiding] The time of the gentleman has expired, if you want 

to wrap it up. 

Ms. PUSTAY. Okay. So the answer is yes, we do many things, including those workshops. 

Ms. HILL. Thank you. 

Without objection, I would like to enter a statement from the 

Electronic Privacy Information Center. 

Ms. HILL. And I will recognize myself for five minutes. 

Mr. Epp, last year this committee received troubling allegations 

from a whistleblower about EPA’s FOIA practices. The whistleblower, a former Deputy Chief of Staff, claimed that the former Administrator Pruitt intentionally delayed responses to new FOIA requests under the pretext of a first-in/first-out policy. So my first 

question is, is the EPA still processing requests under a first-in/ 

first-out policy? 

Mr. EPP. Well, the Department of Justice has guidance that recommends to agencies that they use a first-in/first-out approach. We 

are using a multi-track approach where we try to identify whether 

the FOIA request is simple or whether there are unusual circumstances that make it complex, and then in the Office of the Administrator we have also divided up the FOIA requests, particularly the backlog, within subject matter areas so that they can be 

more efficiently processed by individuals who are familiar with 

those areas. 

So I would not say that it is accurate that we are using a firstin/first-out. In fact, we have within the last months issued FOIA 

responses on many more recent FOIA requests, including in the 

Administrator’s Office. 

Ms. HILL. Is there documentation for this process or protocol 

around this new multi-track process? 

Mr. EPP. The multi-track process and unusual circumstances or 

complex is laid out in our regulations. 

Ms. HILL. So in the regulations that are published where? 

Mr. EPP. EPA’s regulations that were published in the Federal 

Register. 

Ms. HILL. Okay. So the multi-track process was just simply not 

being followed previously, or it was—— 

Mr. EPP. I have been in my position since August of last year. 

Ms. HILL. Okay. 
32 

Mr. EPP. But it is my understanding that the multi-track process 

of determining simple and complex has consistently been followed 

by the agency all the time, ever since the regulations were adopted. 

Ms. HILL. Okay. I think that that is perhaps not the case. But 

are you saying that the EPA is not prioritizing requests for documents of the Obama Administration over the current administration? 

Mr. EPP. We have tackled backlog in various frames, but right 

now we are primarily working on FOIA requests that have come 

in within this administration. 

Ms. HILL. Okay. And is the EPA prioritizing requests for documents of the Pruitt Administration over requests for the documents 

since Administrator Wheeler was named as Acting Administrator? 

Mr. EPP. Like I said earlier, within the last months we have put 

out responses on FOIA requests that have come in within the last 

months within the time of the Wheeler. 

I would also like to point out that the data show that more than 

60 percent, or approximately 60 percent of our FOIA requests we 

respond to within 20 days. 

Ms. HILL. Okay. So if the regulations state that the EPA determines that a request will be placed on a slower track for review, 

that the agency must provide the requester with an opportunity to 

simplify that request, is that happening? 

Mr. EPP. We—when—so EPA is a very decentralized FOIA processing agency. Each office does the FOIA processing themselves, so 

there may be inconsistencies across the agency, but the best practices that we recommend and that my FOIA Expert Assistance 

Team trains on when they go out and do training for offices is to 

do precisely that, to reach out to the requesters, to seek opportunities, to offer them opportunities to narrow their request, to find out 

what information the requesters are actually looking for in order 

to be able to more efficiently and effectively and quickly provide 

them responses. 

Ms. HILL. Okay. In December, a Federal judge in California 

ruled that EPA could not slow-walk their requests for emails and 

calendars of senior EPA officials. Without objection, I would like to 

submit the decision from the Northern District of California to the 

record. 

Ms. HILL. In her ruling, Magistrate Judge Elizabeth Laporte 

said, and I quote, ‘‘The defendant’s limited resources do not relieve 

it of its statutory obligation to promptly provide requested documents.’’ Administrator Wheeler has pledged to improve the timeliness of the EPA’s FOIA responses by hiring additional staff to respond to pending requests. How many staff have been hired in the 

last four months to deal with this issue? 

Mr. EPP. So again, EPA is a decentralized processing agency for 

FOIA. I do not have direct supervisory responsibility over the Office of the Administrator. Nevertheless, my understanding is that 

the Office of the Administrator has hired five new staff for processing FOIA requests. And of course, as I stated in my prepared 

remarks, there was also a Tiger Team of document reviewers that 

was stood up originally in August of last year, 12 individuals who 

have been performing on that document review team, and they 

have reviewed nearly 24,000 documents on a first-pass review since 
33 

August through this last week, and an additional 16,000 documents 

on a second-pass review. 

Ms. HILL. I have some concerns that the decentralized response 

is making it so that we cannot get full information. So can you get 

back to us in terms of how we are able to get answers on the fact 

that you are saying this is a decentralized way of processing FOIA 

information? 

Mr. EPP. I would be happy to work with the committee and your 

staff. 

Ms. HILL. Thank you. 

And with that, I would like to recognize Ms. Miller. 

Mrs. MILLER. Thank you, Madam Chairwoman and Ranking 

Member Jordan, and thank all of you all for being here today. 

West Virginians sent me to Congress to hold our government accountable to the people that it serves. While we work here in Congress to make our own institution more transparent, it is important 

that other branches take similar steps to support an open government. 

Across administrations, full and speedy FOIA compliance should 

be the goal. As we have seen, our current administration has received an increase in FOIA requests. I understand the frustration 

from groups who want access to information quickly, but I also realize such requests take time to process and complete. 

With that in mind, I have questions that I would like each one 

of you to answer. 

How long does it take each of your agencies to review and respond to a simple FOIA request? 

Ms. Pustay, do you want to start? 

Ms. PUSTAY. Between 20 and 30 days for simple track in DOJ. 

Mrs. MILLER. Okay. Thank you. 

Ms. SPECTOR. It is my understanding that the Department of the 

Interior, that our policy—based on our policy, we endeavor to respond to simple requests within five working days. It is also my 

understanding that we are not always able to meet that goal. 

Mrs. MILLER. Mr. Epp? 

Mr. EPP. The data on that is in our annual report, which is posted on our website, and it shows that for simple requests that the 

average number of days that it has taken us to respond was 35. 

Mrs. MILLER. Thank you. How long does it take for you all to review and respond to complex FOIA requests? 

Ms. PUSTAY. Again, that number I do not have memorized, but 

it is obviously in our annual report as well. But I believe it is several hundred days. 

Mrs. MILLER. Several hundred. 

Ms. SPECTOR. The same answer for me. I do not have that number at my disposal, but we can certainly provide it to you. 

Mr. EPP. And again, it is in our annual report that is posted on 

our website. For complex, the data show that the average number 

of days is 148. 

Mrs. MILLER. So it could be anywhere between three and six 

months, basically, would you not say? Okay. 

From Fiscal Year 2016 to Fiscal Year 2017, FOIA requests to the 

Administration increased by a total of nearly 30,000. Since 2017, 
34 

have each of your agencies seen a huge increase in FOIA requests 

overall? Can you quantify it? 

Ms. PUSTAY. Well, again, this is all information that is tracked 

by each agency in their annual FOIA report. You can compare from 

year to year, and then in the summary that my office puts together 

every year we compile the numbers so we can show governmentwide the trends. As I mentioned before, there has been an increase 

in incoming requests for the past several years. Since 2009, we 

have had a steady increase in incoming requests each and every 

year. We have also seen agencies do their best to reach out and respond to that increase by increasing their processing. 

Mrs. MILLER. But you have not seen a huge increase since 2017? 

Ms. PUSTAY. We did see yet again—the trend continued, and certainly at DOJ we received over 90,000 requests in Fiscal Year 

2018, which was a record high for us, and I am expecting the same 

across the government. 

Mrs. MILLER. Thank you. 

Ms. Spector? 

Ms. SPECTOR. At Interior, since the close of Fiscal Year 2016, 

there has been a 30 percent overall increase, but within the Office 

of the Secretary FOIA Office they have experienced a 210 percent 

increase. 

Mrs. MILLER. Wow. 

Mr. EPP. So at EPA, for Fiscal Year 2018, there was a modest 

decline as compared to 2017, but approximately 1,000 more as compared to 2016. Also in 2017, it was approximately 1,000 more than 

in 2016. 

Mrs. MILLER. Thank you. I think it is important for people to 

hear this. 

Would you all say that most of these requests have been simple 

or complex? 

Ms. PUSTAY. The trend definitely is that requests are more complex. 

Mrs. MILLER. Okay. 

Ms. SPECTOR. I would concur to the extent that I do not have the 

hard data in front of me. 

Mrs. MILLER. Thank you. 

Mr. Epp? 

Mr. EPP. And EPA receives a very wide spectrum of requests 

that come in to EPA. As I mentioned earlier, approximately 60 percent of our requests we were able to respond to within 20 days. 

Those are much simpler requests. But others take us much longer. 

And what I also previously stated is that within the Office of the 

Administrator in particular, we have seen a concentration of requests in that office in both 2016 and 2017, an increase in that office of 368 percent one year and 415 percent another year over the 

level that it was in 2016. 

And we have also observed that the requests in particular in that 

office are more complex in a number of different ways in terms of 

our ability to respond, such as requests that ask for all communications from a particular individual, as well as requests that are 

more complex in terms of asking for many subparts that require coordination and communication not only from within the Office of 
35 

the Administrator but from within other offices of EPA to ensure 

that they are properly responded to. 

Mrs. MILLER. Thank you so much. 

Mr. SARBANES. [presiding] The gentlewoman’s time has expired. 

Congresswoman Tlaib is recognized for five minutes. 

Ms. TLAIB. Thank you, Mr. Chairman. 

Ms. Spector, during the government shutdown in January, the 

Department of the Interior’s FOIA request website sent an automatic message to requesters that said, and I quote, ‘‘No FOIA request can be accepted or processed at this time.’’ The Deputy Press 

Secretary for Interior claimed in a statement that this was ‘‘standard protocol for a shutdown.’’ 

Two questions. Is there a written document that confirms this 

policy is standard protocol? 

A second question. Why was the Interior Department unable to 

accept requests through the FOIA online process? 

Ms. SPECTOR. I am not aware of whether or not there is a written document that reflects that protocol, and I am happy to take 

that back to my department and provide a response to you. 

The FOIA online requires staffing, and my understanding of the 

situation is there were no appropriated funds available to provide 

such staffing. 

Ms. TLAIB. Well, during the shutdown in 2018, the Equal Employment Opportunity Commission’s website stated, ‘‘EEOC will accept all FOIA requests during the Federal Government shutdown, 

but EEOC will not be able to process the FOIAs until after the 

Federal Government reopens.’’ 

Another two questions. What prevents the Interior from passively receiving FOIA requests during a shutdown like the EEOC 

did? 

And did the Interior choose to reject requests to avoid starting 

the statutory timeline? 

Ms. SPECTOR. I regret that I do not know the answer to that 

question, but I will endeavor to get back to you with that information. 

Ms. TLAIB. I appreciate that. 

Even though the Interior claimed that it could not accept FOIA 

requests during the shutdown, it still managed to issue a new proposed rule to change its FOIA regulations, and it did so on December 28, six days after the shutdown started. The public was given 

a month to provide public comments, but because of the shutdown 

none of the comments could be reviewed until three days before the 

end of the comment period. 

Another two questions. Was three days enough for the Interior 

to review all the comments on the proposed new rule? 

Why did the Interior rush to announce this new rule during the 

shutdown? 

Ms. SPECTOR. My understanding is that the proposed rule was 

provided to the Federal Register the day of the shutdown. 

And to respond to your second question—actually, could you repeat your question? 

Ms. TLAIB. Yes. Why did the Interior rush to announce the new 

rule during the shutdown? 
36 

Ms. SPECTOR. Yes. I believe that it was unclear whether the 

shutdown was going to occur on that Friday, and the rule was 

ready to be sent to the Federal Register. 

Ms. TLAIB. It just looks bad, we cannot accept FOIA requests but 

we are issuing new rules. I find it troubling that the Interior was 

able to push forward new regulations to roll back FOIA during the 

shutdown at the same time it was refusing to accept new requests. 

The Department of the Interior should be using its limited resources, Ms. Spector, to advance transparency rather than using 

the shutdown to weaken its FOIA program within these new limitations. 

I yield my time, Mr. Chairman. 

Mr. SARBANES. The Chair yields to Mr. Grothman for five minutes. 

Mr. GROTHMAN. A question for Ms. Pustay. Since the portal went 

live, how many requests have been submitted to the portal, do you 

think? 

Ms. PUSTAY. Nine thousand. 

Mr. GROTHMAN. Nine thousand. Okay. Do you think it has 

streamlined these requests? We are better off with the portal? 

Ms. PUSTAY. Yes. We have been very pleased with the operation 

of the portal so far, and obviously we are really looking forward to 

improving the capabilities and the capacities of it. 

I think one of the key highlights of the portal, first of all, was 

that it was built in conjunction with user feedback. So all through 

the process of developing the portal, we were working not just with 

agencies but also with requesters to find out what is it that is most 

useful to them in the request-making process, and I think by factoring that input in, we did simplify the process. 

Mr. GROTHMAN. And about how quick is the turnaround, do you 

think? 

Ms. PUSTAY. The transmission through the portal is basically instantaneous. 

Mr. GROTHMAN. Okay, Okay. Do you believe—there have been 

some rumors out there. Do you believe agencies are making an effort to make their current system interoperable with the FOIA? 

Ms. PUSTAY. They are now required to. The Justice Department 

and OMB just issued a memo to agencies directing them and setting forth a schedule and a process for them to develop plans to become interoperable with the National FOIA Portal. The default position for any agency that has an automated case management system is that they are going to need to be interoperable with the portal through an API, an application programming interface, which 

is basically a tool or a bridge between two technology systems. 

So the idea there is that the greatest efficiencies are achieved by 

using an API, and the agencies with automated case management 

systems will have requests coming through the portal and going directly into their internal case management systems. It is a definite 

improvement in efficiency. 

Mr. GROTHMAN. Okay. So it sounds like you are doing a great job 

on the first iteration. Are you working on a second iteration? 

Ms. PUSTAY. Yes, we definitely are, and we have a group. We 

have secured funding for improvements to the portal, and we have 

several things that we want to do both to help have a guided fea-
37 

ture, for example, to help guide requesters to the right agency. We 

want to help improve the reporting functionality for agencies. We 

have been talking a lot today about annual FOIA reports and governmentwide numbers. We want to do some things with the portal 

to work on that. We have a lot of ideas, and we are looking forward 

to keeping the National FOIA Portal as a vital part of FOIA. 

Mr. GROTHMAN. Super. 

Just a general comment and a followup with Ms. Spector and Mr. 

Epp. How does your agency—or what is your experience with the 

portal? Do you get a lot of requests through there? Do you feel it 

is working well? 

Ms. SPECTOR. I actually do not have numbers on requests that 

we have received through the DOJ portal, but I can provide that 

at a later time. 

Mr. GROTHMAN. Okay. 

Mr. Epp? 

Mr. EPP. I also do not have those numbers. We use FOIA Online 

as our primary method for receiving FOIA requests. 

Mr. GROTHMAN. Okay. Do you feel the portal, though, does it 

interact with the current system? 

Mr. EPP. Currently it does not. We are committed to making that 

interoperable. 

Ms. SPECTOR. I believe at Interior that it does. 

Mr. GROTHMAN. Okay. 

Mr. Epp, how many individuals work on FOIA at the EPA? 

Mr. EPP. So, our annual report shows that there are approximately 100 full-time employees, and approximately an additional 

100 full-time equivalents. So those are people who work on FOIA 

part time and enter their information. 

Mr. GROTHMAN. So it is like 200 people full time are just working 

on FOIA. 

Mr. EPP. Full-time equivalent. 

Mr. GROTHMAN. Okay. Does each office within EPA have their 

own department? 

Mr. EPP. So, as I mentioned earlier, EPA is a highly decentralized FOIA processing agency, so each of the major divisions have 

a FOIA officer, a FOIA coordinator who manages the assignments 

of FOIAs. 

Mr. GROTHMAN. Okay. And then maybe I missed this. How many 

FOIA requests do you get, FOIA requests did you get in 2017 total 

for EPA? 

Mr. EPP. It was approximately 11,000. 

Mr. GROTHMAN. Eleven thousand. And did that go up or down 

last year? 

Mr. EPP. Last year it was slightly lower than it was the year before. 

Mr. GROTHMAN. Is there any big change since the Obama Administration? What were you getting in 2015, 2016? 

Mr. EPP. One of the things that I have testified to is that, as 

compared to 2016, both 2017 and 2018 were approximately 1,000 

higher than they were in 2016. 

Mr. GROTHMAN. Okay, so up, but not wildly up, right? 

Mr. EPP. What we have observed in both 2017 and 2018 is significant increase in FOIA requests to the Office of the Adminis-
38 

trator. So that particular component of the agency received approximately 368 percent more than 2016, and approximately 415 

percent more in—— 

Mr. GROTHMAN. Okay. I think I am about ready to get the hook, 

so we will let you be. 

Mr. SARBANES. The gentleman’s time has expired. 

I yield myself five minutes for questions. 

Ms. Spector, the Department of the Interior proposed a rule in 

December, I believe, that would restrict public access to its records. 

Under the rule, Interior could ‘‘impose a monthly limit for processing records’’ for an individual requester. 

I am curious; what is the monthly limit that Interior is proposing? 

Ms. SPECTOR. Congressman, this is a work in progress, and I 

would like to explain that. During the past two years the Department has seen a significant increase in complex requests that are 

seeking any and all records that result in the collection of a large 

volume of material, and this creates—the monthly processing limit 

proposal is an effort to equalize the provision of records to all FOIA 

requesters. So if you have a small group of requesters whose requests consist of hundreds of thousands of pages of documents, that 

if we produce only a portion to them in a monthly period, that we 

can then provide more responses to more requesters. 

Mr. SARBANES. I get that. I understand that. What is the number? 

Ms. SPECTOR. There actually is not a set number. As I was describing a little bit earlier, in the context of FOIA non-response litigation, we have a separate track of processors who work only on 

those matters, and we calculate a monthly processing capability 

based on the number of litigated matters, the number of processors, and the estimated page number that each processor can 

complete in a month. 

Mr. SARBANES. I guess the reason that concerns me is—first of 

all, I am not sure a monthly limit really comports with the spirit 

of FOIA. I mean, the agencies to which these inquiries are directed 

are under an obligation to respond, and a monthly limit would appear to cut against that obligation. But also I am particularly troubled at this notion that the monthly limit could just change based 

on the—I mean, I understand from your point of view maybe why 

that could make some sense, but the potential to, in a sense, manipulate the monthly limit from month to month, either based on 

the kinds of requests that have come in previously or in anticipation of requests that may be coming, could allow for a lot of mischief. Do you understand what I am saying? 

You could anticipate, oh, this group is going to be making this 

number of requests, so let’s set the monthly limit here for the next 

month, and that will knock them down. And then another month 

comes along and you change it again to potentially respond to another group. The reason that concerns me is there is potential for 

politics to get in the mix. 

I understand that the Western Values Project, which is a nonprofit based in Montana, was one of the organizations that has frequently requested records from the Interior over the past two 

years, and the former Secretary of the Interior, Ryan Zinke, went 
39 

on television and was disparaging the group: they are operatives of 

the Democratic Party, they are hacks, they have always been, they 

need to be investigated, et cetera. 

I am concerned that these monthly limits maybe are being instituted potentially as a way of limiting the inquiries coming from 

certain groups based on their politics. 

Was this rule drafted in any way in response to that particular 

group, that you are aware of? 

Ms. SPECTOR. Absolutely not. 

Mr. SARBANES. Do you understand my concern about how monthly limits could be manipulated based on experience or anticipation 

of what will be coming in? Do you see that as an issue? 

Ms. SPECTOR. I would agree that a monthly limit scenario that 

was applied arbitrarily and capriciously could result in that outcome, but I would also say that the process that we anticipate is 

a process by which we assess our capacity and provide the greatest 

number of FOIA responses to the greatest number of requesters 

each month. At the end of the day, that promotes the spirit of the 

FOIA to a greater extent than focusing on a small subset of requesters who eat up all the time of the FOIA processors with these 

large requests that involve thousands of pages of documents. 

Mr. SARBANES. Well, you have not completely assuaged my anxiety on this point, so I would ask the Department to go back and 

take a closer look at this rule, because I think there is the potential 

for it to be used in a way that cuts against the obligations under 

FOIA. 

With that, I will yield back my time to myself and recognize Congresswoman Speier for five minutes. 

Ms. SPEIER. Thank you, Mr. Chairman. 

Ms. Spector, are you a political appointee? 

Ms. SPECTOR. No. 

Ms. SPEIER. So you work for the American people; correct? 

Ms. SPECTOR. Yes, ma’am. 

Ms. SPEIER. Now, you indicated that the percentage increase in 

the last year or two was up 30 percent for—— 

Ms. SPECTOR. The Department overall. 

Ms. SPEIER. And 200 percent for—— 

Ms. SPECTOR. Two-hundred and 10 percent for the Office of the 

Secretary. 

Ms. SPEIER. Now, having said that, in 2016 the Department of 

the Interior released 53,000 records proactively, and in 2018 the 

Department released just 22,000 records. That is a 58 percent reduction in the number of documents that were released. So to make 

the claim that the production of document requests has increased, 

the actual number of pages or requests that have been filled has 

been reduced by 58 percent. So how do you account for that? 

Ms. SPECTOR. Well, I think the number that you are referring to 

is our proactive disclosures. Under the FOIA we are required, when 

three or more requesters seek certain documents, that we make 

them proactively available to the public. Although I am not specifically familiar with the data that you provided about that decline, 

I think I can speculate with some assurance that given the increased volume of our FOIA requests overall, and specifically with 

the Office of the Secretary, that has hampered our effort to make 
40 

proactive disclosures that are not in response to a specific FOIA request. 

Ms. SPEIER. All right. Last month the Ninth Circuit Court of Appeals rejected efforts by the U.S. Fish and Wildlife Service, which 

falls under your agency, for disclosures to the Sierra Club. The document at issue was an analysis provided to the EPA by Wildlife 

Service, as required by law, on the adverse effects of a proposed 

rule that would have endangered turtles and sea lions. The Service, 

which is within your Department, wanted to hide the documents 

through the so-called deliberative process exemption in FOIA. 

Why would the Department want to shield its analysis on the impact of an EPA regulation from the public? 

Ms. SPECTOR. I am not familiar with that specific case. 

Ms. SPEIER. All right. If you are not familiar, would you become 

familiar and then report back to the committee on why you felt 

compelled to shield the analysis from the public? 

Ms. SPECTOR. Certainly. Can I say, though, that—— 

Ms. SPEIER. I do not want to waste my time if you cannot answer 

it. 

Ms. SPECTOR. I understand. 

Ms. SPEIER. How would you explain—the question asked about 

the monthly limit, where did that idea come from? 

Ms. SPECTOR. Interestingly, it is a variation on a protocol that we 

understand the Federal Bureau of Investigation applies in managing its FOIA responses. 

Ms. SPEIER. Did the FBI suggest this to you? How did this idea 

pop into your head? 

Ms. SPECTOR. We learned of it in litigation and reached out to 

the Federal Bureau of Investigation to understand their processes, 

and in light of that are attempting to develop an approach—— 

Ms. SPEIER. I hope you can appreciate, from some of the questions that you have heard today, that that is a really bad idea. 

I would like to move on to Ms. Pustay. You have indicated in a 

memorandum about what documents should be included in administrative records. You specifically said that documents reflecting 

the agency’s pre-decisional deliberative process are generally not 

relevant to the APA. 

How can agencies be held accountable under the APA if we cannot see how decisions are being made? 

Ms. PUSTAY. I do not have any idea what document you are talking about because I would not have written a document about the 

Administrative Procedures Act. 

Ms. SPEIER. It was a memo, October 20th, 2017, from DOJ about 

what documents to include in administrative records. 

Ms. PUSTAY. So it is not a FOIA matter, and I cannot answer it. 

I am sorry. 

Ms. SPEIER. So in that case, would you look into it for us and report back to the committee? 

Ms. PUSTAY. Sure. 

Ms. SPEIER. All right. 

And with that, Mr. Chairman, I will yield back. 

Mr. SARBANES. The gentleman from Vermont, Mr. Welch, is recognized for five minutes. 

Mr. WELCH. Thank you, Mr. Chairman. 
41 

Ms. Pustay, the FOIA Improvement Act of 2016 requires agencies to establish ‘‘procedures for identifying records of general interest that are appropriate for public disclosure and for posting such 

records in a publicly accessible electronic format,’’ as you know. Research, I am told, shows that agencies could significantly reduce 

their FOIA backlogs by taking steps to proactively disclose information that is routinely requested by the public. 

What procedures have agencies established to comply with this 

section of the law? 

Ms. PUSTAY. We have long hoped that we would see a decline in 

the incoming FOIA requests as a result of proactive disclosures. 

But as we have been talking about today, the number keeps increasing. But we can certainly hope that there are individuals who 

have been finding their records via proactive disclosures, and it is 

definitely a factor in our DOJ FOIA guidelines. It is something that 

we train on regularly. We have issued guidance to agencies on 

making proactive disclosures because we really think it is a very 

beneficial part of FOIA administration. 

To your question specifically, we asked all agencies to include in 

their Chief FOIA Officer Report a description of the steps they 

take, the methods they use to identify records for proactive disclosure. So we will have that answer for every single agency as part 

of their Chief FOIA Officer Report. 

Mr. WELCH. In 2016, Professor Margaret Kwoka conducted research on a group of agencies with significant numbers of FOIA requests. She found that certain private companies were routinely requesting large volumes of records from regulatory agencies such as 

the FDA and FCC, and then selling access to the records for a profit. It sounds like a rip-off, actually. 

If there is so much demand for the public records, why don’t the 

FDA and the FCC proactively disclose them? 

Ms. PUSTAY. Right. I am aware of that research, and we actually 

did some followup questions to agencies via the Chief FOIA Officer 

Reports. I think I agree with you. The obvious response to that situation is for the agencies themselves to proactively make that information available. 

Mr. WELCH. One company, I guess Day and Day, incorporated notes on its website that it charges $1,800 a year for online access 

to a data base of information on Defense contracts. Another company, BioScience Advisors, lists a price of $9,500 for an annual subscription to a data base of FCC contracts. 

Mr. Chairman, that sounds like an outrageous business but one 

we allow. 

How does it serve the public for the government agencies to subsidize these data bases? 

Ms. PUSTAY. Right. Of course, the public is best served by the 

agencies directly making the material available for free to everyone 

on their own website. 

Mr. WELCH. So the government could create their own data 

bases. 

Ms. PUSTAY. I certainly agree with you that the way to address 

this is for posting to be done by the government. 

Mr. WELCH. Yes. And according to the Professor’s research, government agencies are only recouping between 1 and 5 percent of 
42 

the cost of processing. In 2015 she pointed out—this is great research—the FDA spent $33 million on processing costs but received 

$327,000 in fees from requesters. 

Why are we allowing companies to make huge profits compiling 

information that should simply be proactively released? 

Ms. PUSTAY. Well, your question has a couple of elements to it. 

The recouping of fees we report for every single agency. It is a requirement of their FOIA report, and it is a very incredibly small 

number, but that is because of the structure of the FOIA. It really 

limits the situations where agencies can charge fees. So as a practical matter, they are really almost a non-issue, a non-relevant part 

of FOIA, although I think it is an important thing to be looked at 

going forward. 

Mr. WELCH. Okay. Thank you very much. 

I yield back. 

Mr. SARBANES. Would you yield the balance of your time to me? 

I had a question for all of you, which is that as you have been 

testifying, I am getting a sense of the potential for there to be different standards on how you respond to these FOIA requests depending on the agency. Is there a process where you are looking 

to your left and your right kind of at what best practices ought to 

operate across the entire government in terms of responding? 

Each of you can answer that question, if you would like. 

Ms. PUSTAY. I will start by saying that because of our role, our 

governmentwide guidance role, we, of course, established the 

standards for agencies to apply, and we do that through our guidance that is posted on our website, through our training to agencies, and through the DOJ FOIA guidelines that we have now had 

for 10 years that give what we call the pillars of FOIA administration. 

But then we know on a very practical level that there are tips 

and nuances, procedures that can be employed to manage FOIA requests and manage different aspects of FOIA administration, and 

that is where we do things like have best practices workshops. 

There are other ways that within that the government agencies 

interact with one another, including through our newly constituted 

Chief FOIA Officers Council, and then agencies informally meet 

with one another to learn best practices. 

Mr. SARBANES. Appreciate that. 

Any other comments? 

Ms. SPECTOR. I would add that in formulating the new departmental FOIA office that I am responsible for launching and making 

operational, we work quite closely with the EPA, as well as the FBI 

and other agencies to identify best practices precisely. 

Mr. EPP. We, of course, look to the DOJ guidance for much of our 

processing baseline, and then we compare notes with other agencies. My staff have attended DOJ trainings. We compare notes with 

other agencies for those sort of cutting-edge, innovative ways of 

doing things. And then we, of course, have our own cutting-edge, 

innovative ways of doing things, and I have testified throughout 

this hearing regarding our FOIA Expert Assistance Team, which 

we think is one of those innovative approaches that we have listed 

in our Chief FOIA Officer Report as one of our best practices. And 
43 

we, of course, use FOIA Online as a ‘‘disclosure to one is a disclosure to all’’ approach to proactive disclosure. 

Mr. SARBANES. Thank you. One of the reasons I asked that is because some of the concerns we have expressed here on how things 

are being done in response to requests, hopefully those would fall 

off of any best practice list and be replaced by things that are more 

responsive to the public. 

With that, I would like to recognize the gentlewoman from Florida, Ms. Wasserman Schultz, for five minutes. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

Ms. Spector, in your testimony you challenged claims that Interior leaders have politicized the FOIA process. So let me be very 

specific, and I would like yes or no answers to these questions, 

please. 

Are you aware of any attempts to delay or deny a FOIA request 

to hide information about or protect former Secretary Zinke? 

Ms. SPECTOR. No, I am not. 

Ms. WASSERMAN SCHULTZ. Are you aware of any attempts to 

delay or deny a FOIA request to hide information about or protect 

Secretary Bernhardt? 

Ms. SPECTOR. No, I am not. 

Ms. WASSERMAN SCHULTZ. Are you aware of attempts to delay or 

deny a FOIA request to hide information about or protect your 

boss, Solicitor Giorgianni? 

Ms. SPECTOR. No, and may I extend my answer to say that we 

respond to FOIA requests consistent with the exemptions in the 

FOIA, and to the extent information has been withheld, to my 

knowledge it has always been based on a sound legal framework. 

Ms. WASSERMAN SCHULTZ. Okay. Well, that leads me to a question: Are you aware of any policy changes made to delay or deny 

FOIA requests to protect politically appointed staff? 

Ms. SPECTOR. No, I am not aware of that. 

Ms. WASSERMAN SCHULTZ. Okay. Well, this memo from February 

28th clearly instructs an additional layer of review for any requested documents that mention politically appointed staff. How is 

this not a policy change? 

And I would like to ask unanimous consent, Mr. Chairman, to 

enter this memo into the record. 

Mr. SARBANES. Without objection. 

Ms. WASSERMAN SCHULTZ. How is this not a policy change designed to delay FOIA requests explicitly to protect your bosses? 

Ms. SPECTOR. I now am actually very familiar with what you are 

referring to. It was a memo that was published on our website in 

February. It was actually an update of an earlier iteration of an 

awareness review policy that was posted on our website in May. 

Ms. WASSERMAN SCHULTZ. Okay. Please get to the answer. 

Ms. SPECTOR. The awareness review is something that the agency and I believe other agencies have been doing informally for 

many years, dating back at least to the prior administration. 

Ms. WASSERMAN SCHULTZ. Having a layer of review for politically 

appointed staff is something that has routinely been done? That is 

not something that I am remotely familiar with. 
44 

Ms. SPECTOR. The primary purpose of this policy—in fact, the 

purpose of this policy is to make senior leadership aware of upcoming releases that may receive media attention. It provides—— 

Ms. WASSERMAN SCHULTZ. Okay. That would also seem to me to 

be an attempt to delay or deny FOIA requests when you add another layer of review by politically appointed staff to slow down the 

assurance that FOIA requests are going to be met in a timely fashion. You answered no to my questions, and clearly this process 

adds a layer that delays the process and potentially risks denial of 

a legitimate FOIA request. 

Ms. SPECTOR. I disagree on that second point. The policy provides 

for three workdays in which senior officials are made aware of releases that are upcoming, but the policy does not provide for senior 

officials preventing the release of the information. 

Ms. WASSERMAN SCHULTZ. Well, the policy even provides a layer 

of review for people who left in the last three months. Is there any 

reason for the inclusion of that three-month period other than to 

protect former Secretary Zinke? 

Ms. SPECTOR. Again, three months is a relatively recent period, 

and—— 

Ms. WASSERMAN SCHULTZ. Incidentally coinciding with Secretary 

Zinke’s departure, which was December 15th. Is there any reason 

to include that three-month layer of review for people who left in 

the last three months other than to protect Secretary Zinke? 

Ms. SPECTOR. I believe that things that may—— 

Ms. WASSERMAN SCHULTZ. Like what? 

Ms. SPECTOR. I am sorry. What? 

Ms. WASSERMAN SCHULTZ. Like what? Besides protecting Secretary Zinke, what can you think of that would need review in the 

prior three months? 

Ms. SPECTOR. Indeed, there may be policy decisions that were 

made in the previous three months that implicate the current leadership in the Department for which they legitimately should be 

aware before the release is made. 

Ms. WASSERMAN SCHULTZ. Even though that has never been the 

policy before? And incidentally, you implemented a three-month review process—— 

Ms. SPECTOR. Three day, three workday. 

Ms. WASSERMAN SCHULTZ.—a process that requires review for 

people who have left in the last three months suddenly. Is that 

pure coincidence that it happens that the previous Secretary left on 

December 15, within that three-month window? Because this is not 

something that was ever needed before. Why is it needed now? 

Ms. SPECTOR. I guess I am not understanding your question. I 

am sorry. 

Ms. WASSERMAN SCHULTZ. Okay. If I can just indulge for a moment to clarify, Secretary Zinke left on December 15. That is within the last three months. And prior to Secretary Zinke’s departure, 

there was not a requirement or a layer of review for FOIA requests 

for people who left in the previous three months. Suddenly there 

is a review that was deemed necessary following his departure. 

Is there any reason not to conclude that that three-month period 

was added other than to protect former Secretary Zinke? 
45 

Ms. SPECTOR. Yes. Again, I believe that there may have been policy discussions within the previous three months that implicate the 

senior officials that are currently leading the Department, and pursuant to our policy they have three working days to be aware of 

the release of that material. 

Ms. WASSERMAN SCHULTZ. Reclaiming my time, Mr. Chairman. 

In my days as a state legislator, we called Ms. Spector’s answer not 

passing the straight-face test. 

Thank you. I yield back. 

Mr. SARBANES. The gentlewoman’s time has expired. 

I want to thank the witnesses because this is a very important 

topic, obviously. The public has a strong appetite. It fluctuates over 

the course of different administrations and congresses and so forth 

in terms of the kinds of information that they would like to see. 

It is a tricky process to navigate, I understand. Establishing best 

practices in the ways that you heard from members today is obviously very, very critical. 

So we are going to continue to take a close look at how the agencies respond and meet their obligations under FOIA. This was an 

important opportunity for us to get input and perspective from 

your agencies, and we certainly appreciate your testimony. 

Without objection, I would like to place in the record a statement 

from Public Citizen. 

Without objection, so ordered. 

Mr. SARBANES. I want to thank our witnesses for testifying 

today. 

Without objection, all members will have five legislative days 

within which to submit additional written questions for the witnesses to the Chair, which will be forwarded to the witnesses for 

their response. I ask our witnesses to please respond as promptly 

as you are able. 

This hearing is adjourned. Thank you. 

[Whereupon, at 12:33 p.m., the committee was adjourned.] 

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