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THE FREEDOM OF INFORMATION ACT: CROWDSOURCING GOVERNMENT OVERSIGHT

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

MARCH 17, 2011

Serial No. 112–19

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

(

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

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on March 17, 2011 ............................................................................ 1

Statement of:

Nisbet, Miriam, Director, Office of Government Information Services, National Archives and Records Administration; Daniel Metcalfe, executive

director, Collaboration on Government Secrecy; Rick Blum, coordinator,

Sunshine in Government; Tom Fitton, president, Judicial Watch; and

Angela Canterbury, director, Public Policy Project on Open Government

Oversight ....................................................................................................... 7

Blum, Rick ................................................................................................. 24

Canterbury, Angela ................................................................................... 48

Fitton, Tom ................................................................................................ 33

Metcalfe, Daniel ......................................................................................... 15

Nisbet, Miriam ........................................................................................... 7

Letters, statements, etc., submitted for the record by:

Blum, Rick, coordinator, Sunshine in Government, prepared statement

of ..................................................................................................................... 26

Canterbury, Angela, director, Public Policy Project on Open Government

Oversight, prepared statement of ................................................................ 50

Fitton, Tom, president, Judicial Watch, prepared statement of ................... 35

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, prepared statement of ................................................................ 3

Metcalfe, Daniel, executive director, Collaboration on Government Secrecy, prepared statement of ........................................................................ 18

Nisbet, Miriam, Director, Office of Government Information Services, National Archives and Records Administration, prepared statement of ....... 9

(1)

THE FREEDOM OF INFORMATION ACT:

CROWD-SOURCING GOVERNMENT OVERSIGHT

THURSDAY, MARCH 17, 2011

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 9:32 a.m. in room

2154, Rayburn House Office Building, Hon. Darrell E. Issa (chairman of the committee) presiding.

Present: Representatives Issa, Platts, McHenry, Chaffetz,

Walberg, Lankford, Amash, Buerkle, Gosar, Meehan, Farenthold,

Kelly, Cummings, Towns, Norton, Tierney, Clay, Connolly, Quigley.

Staff present: Ali Ahmad, deputy press secretary; Robert Borden,

general counsel; Molly Boyl, parliamentarian; Lawrence J. Brady,

staff director; Benjamin Stroud Cole, policy advisor and investigative analyst; Gwen D’Luzansky, assistant clerk; Adam P. Fromm,

director, Member liaison and floor operations; Linda Good, chief

clerk; Frederick Hill, director, communications and senior policy

advisor; Christopher Hixon, deputy chief counsel, oversight; Hudson T. Hollister, counsel; Justin LoFranco, press assistant; Mark D.

Marin, senior professional staff member; Tegan Millspaw, research

analyst; Laura Rush, deputy chief clerk; Nadia A. Zahran, staff assistant; Krista Boyd and Beverly Britton Fraser, minority counsels;

Carla Hultberg, minority chief clerk; Lucinda Lessley, minority policy director; Amy Miller, minority professional staff member; Dave

Rapallo, minority staff director; Suzanne Sachsman Grooms, minority chief counsel; Mark Stephenson, minority senior policy advisor/

legislative director.

Chairman ISSA. The committee will come to order.

Good morning.

The task of the committee is to hold Government accountable to

taxpayers because taxpayers have a right to know what they get

from their government. We will work tirelessly in partnership with

citizen watchdogs to deliver the facts to the American people and

bring genuine reform to the Federal bureaucracy. This is the mission of the Oversight and Government Reform Committee.

Today’s hearing falls exactly within our mission statement and

is, in fact, the heart of our statement. Bureaucratic accountability

is, in fact, a growing problem in America at a time in which we

would hope that data transparency, Web sites that can be automatically populated with information day in and day out so that

Americans seamlessly search for information they have a right to

know, should be a given, but it is the exception, the rare exception.

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FOIA authority needs to be expanded. But let me assure you,

FOIA needs to be nearly obsolete, obsolete because most information requested and seldom properly granted should be available online in real time. This committee will have to work with this and

future administrations to break down the silos that have for so

long caused the closing even of financial information to be done

generally by tens or hundreds of bureaucrats retyping and reinputting data or data centers manipulating data from divergent

data bases.

Today, we will hear about the President’s-issued Executive order

directing Federal agencies to disclose more information and disclose it more rapidly and to reduce the backlog. For this, we commend the President.

Just this week, John Podesta, the man who managed the President’s transition team, stated his disappointment in how the administration has thus far implemented FOIA procedures. Indeed,

transparency is often the victim of electoral success. Every inspiring Presidential candidate promises voters to inaugurate a new era

of open government upon his election, but nearly every administration, and if this hadn’t been written for me, I might have said

every administration, proceeds to delay, redact or deny FOIA requests when public disclosure of information is deemed politically

inconvenient.

The committee has initiated a comprehensive analysis of how

Federal Governments handle FOIA procedures. In recent weeks,

the committee has witnessed firsthand the bureaucratic obstruction

that the general public often experiences. The committee experience to date reveals inadequacies in FOIA as well as a disparity

in FOIA compliance among Federal agencies.

Today’s hearing will afford the committee an opportunity to fully

examine some of the problems associated with FOIA design and

implementation as well as executive branch compliance.

I look forward to the witnesses today. In closing, before I recognize the ranking member, I also would like to thank the men and

women who do FOIA compliance. As much as today’s hearing may

be about delays and bureaucratic ineptness, there are hundreds

upon hundreds of people whose job it is every day to try to work

within a system that they did not create, rules that they with

which they must comply, and frustrations when people are complaining they didn’t get what they asked for, they didn’t get it at

all, or they didn’t get it in a timely fashion.

From this committee, which represents the rights of every Federal worker, if you will, let us understand today it is not about

blaming those in the FOIA compliance. It is about blaming those

of us well above them who have an obligation to make the system

work so they can do their job better.

With that, I recognize the ranking member for an opening statement.

[The prepared statement of Hon. Darrell E. Issa follows:]

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Mr. CUMMINGS. Thank you, Mr. Chairman, and thank you for

calling this hearing.

I want to begin where you ended. So often so many negative

things are said about our public employees. It is very good to hear

you feel as I do, Mr. Chairman, that public employees play a very,

very important role. They are often unseen, unnoticed,

unappreciated and unapplauded. I take this moment to join with

you in thanking, not only the FOIA employees, but all of our public

employees who, contrary to so many statements we have heard,

quite often are underpaid and dedicate their lives to making a difference.

This is Sunshine Week, our Nation’s observance of the importance of open and transparent government. This week also marks

the 260th anniversary of James Madison’s birth. He was a champion of the public’s right to know and a strong defender of open

government. In 1822, James Madison said, ‘‘A popular government

without popular information or the means of acquiring it, is but a

prologue to a farce, or a tragedy, or perhaps both. Knowledge will

forever govern ignorance, and a people who mean to be their own

Governors, must arm themselves with the power knowledge gives.’’

It is fitting today that our committee is holding a hearing on one

of the pillars of open government, the Freedom of Information Act,

which helps ensure that the public has the information and the

knowledge that Madison described so powerfully.

Beginning with his first day in office, President Obama has reinvigorated the executive branch’s commitment to open government

and reversed many of the troubling policies of his predecessor.

Highlighting FOIA as ‘‘the most prominent expression of a profound national commitment to ensuring an open government, the

President said, ‘‘The Freedom of Information Act should be administered with a clear presumption. In the face of doubt, openness

prevails.’’

Based on this instruction, Attorney General Eric Holder rescinded Attorney General Ashcroft’s 2001 policy memorandum on

FOIA that allowed agencies to err on the side of secrecy rather

than disclosure for eight long years. The Obama administration’s

new commitment to transparency and open government has resulted in significant improvements in FOIA implementation.

FOIA backlogs have been reduced significantly in back to back

years under this administration. Agencies, such as the Departments of Agriculture and Defense, have decreased incoming requests by proactively disclosing more information online. The Department of Justice recently unveiled FOIA.gov, a comprehensive

public resource for governmentwide FOIA information and data.

Still, there is always room for improvement, we can always do

better. A recent report from the National Security Archive found

that the Obama administration ‘‘has clearly stated a new policy direction for open government but has not conquered the challenge

of communicating and enforcing that message throughout the executive branch.’’

In my opinion, the best way to make government more effective

is to make it more accountable to the public. For this reason, I am

pleased to announce that I have introduced legislation this morning

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to strengthen the Nation’s core Open Government laws, and every

Democratic member of our committee is an original co-sponsor.

This legislation, the Transparency and Openness in Government

Act, is a package of five bills that overwhelmingly passed the

House in the last Congress with broad, bipartisan support, including your own, Mr. Chairman.

This legislation will make Federal commissions more transparent

and accountable; increase public access to Presidential records; require greater disclosure of donations to Presidential libraries; ensure that government email records are preserved; and clarify the

authority of the Government Accountability Office to access agency

records.

Mr. Chairman, I know you believe that transparency should not

be a partisan issue, I heard what you just said and I know you

mean it, so I hope that you will join as a co-sponsor also. As chairman of this committee and chairman of the House Transparency

Caucus and as a supporter of identical language that passed in the

last Congress, I know you share our goals.

Given the widespread bipartisan support of these provisions, I

hope that you and every single Republican and every single Democrat in the House will join us in making sure that we sign on to

this bill and urge Speaker Boehner to move it to the House floor

as swiftly as possible.

With that, Mr. Chairman, again I thank you for this hearing. I

look forward to the testimony and I thank the witnesses for being

with us today.

With that, I yield.

Chairman ISSA. I thank the ranking member.

Members may have 7 days to submit opening statements and extraneous material for the record.

The chair will now recognize the panel of witnesses.

Ms. Nisbet is Director, Office of Government Information Services which acts as a FOIA ombudsman between requesters and

agencies.

Professor Daniel Metcalfe is the executive director of Collaboration of Government Secrecy through American University’s Washington College of Law and a former Director of the Office of Information and Privacy at the Department of Justice.

Rick Blum is the coordinator for the Sunshine in Government

Initiative and has spent over a decade in Washington advocating

for greater transparency in government.

Tom Fitton is president of Judicial Watch, a conservative, nonprofit whose mission is to promote transparency and accountability

in government. We are very familiar with your work also.

Ms. Angela Canterbury is director of public policy at the Project

on Open Government [POGO], which is focused on achieving effective, accountable and open, ethical government. Again, we thank

you for your work.

It is the rule of the committee that all witnesses be sworn. Please

rise to take the oath.

[Witnesses sworn.]

Chairman ISSA. Please be seated.

I would inform the entire panel that contrary to our ordinary

procedure, since this is the last day before recess, votes will be held

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sometime during this hearing. There will only be two votes. We will

stay for at least 5 minutes, perhaps as much as 10. If you are still

making your statements, we will leave, there will be two votes, and

we should be back in 20 to 25 minutes after we leave.

I would announce that as soon as anyone returns who can take

the chair, we will commence, so that we not interrupt. We will also

take Members who come back in the order they return if there is

time.

Most of you have been here a lot and you know the drill, green,

yellow and red. Let us get through all of you if we can before the

votes.

Ms. Nisbet.

STATEMENTS OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT INFORMATION SERVICES, NATIONAL ARCHIVES

AND RECORDS ADMINISTRATION; DANIEL METCALFE, EXECUTIVE DIRECTOR, COLLABORATION ON GOVERNMENT SECRECY; RICK BLUM, COORDINATOR, SUNSHINE IN GOVERNMENT; TOM FITTON, PRESIDENT, JUDICIAL WATCH; AND ANGELA CANTERBURY, DIRECTOR, PUBLIC POLICY PROJECT

ON OPEN GOVERNMENT OVERSIGHT

STATEMENT OF MIRIAM NISBET

Ms. NISBET. Good morning, Mr. Chairman, Representative

Cummings and members of the committee.

I am delighted to be here today during Sunshine Week to talk

about my office, the Office of Government Information Services at

the National Archives and Records Administration. We are an important part of the Freedom of Information and Open Government

Initiatives of the Federal Government and we are also a new approach under the FOIA to avoiding litigation.

As you know, the FOIA is pretty simple in concept but a bit more

complicated in execution. Anyone can ask for records of the executive branch agencies which then, within strict time limits, must respond to the requester either disclosing the records or giving the

reasons why they are not being disclosed under specific exemptions. If dissatisfied, the requester can file an administrative appeal within the agency and then, if still unhappy, file a lawsuit in

Federal court.

At least that was the law until the FOIA was amended in 2007

to create the Office of Government Information Services or OGIS,

as we call it, to offer mediation services to resolve disputes between

FOIA requesters and the executive branch agencies.

In addition to resolving disputes, the statute directs us to review

agency FOIA policy, procedures and compliance. In carrying out

our mission, we have realized that much of our work does fall

under the designation that Congress gave us as the FOIA ombudsman. As an ombudsman, OGIS acts as a confidential and informal

information resource, communications channel and compliant handler. OGIS supports and advocates for the FOIA process and does

not champion requesters over agencies or vice versa. We encourage

a more collaborative, accessible FOIA for everyone.

At this hearing, looking at, among other things, crowd sourcing

of FOIA oversight, you will be glad to hear that the interest in

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FOIA reaches far and wide, based on what we have seen in our

first 18 months of operation. We heard from requesters from 43

States, the District of Columbia, Puerto Rico and 12 foreign countries. Our cases have involved 32 departments and agencies, including all 15 Cabinet level departments.

We answered questions, provided information, listened to complaints and tried to help in any way we could. For the more substantive disputes, we facilitated discussions between the parties,

both over the phone and in person, and worked to help them find

mutually acceptable solutions.

The statutory term mediation services include the following: formal mediation, facilitation and ombud services. We have found the

less formal method of facilitation by OGIS staff members provides

something similar to mediation but, as I said, in a less formal way,

and parties are more willing to engage with OGIS and with each

other without the perceived formality of mediation.

Since September 2009 when we opened, OGIS has closed 541

cases, 124 of them true disputes between FOIA requesters and

agencies such as fees charged and FOIA exemptions as applied. As

a facilitator for the FOIA process to work as it is intended, we were

not calling balls and strikes, but letting the parties try to work

matters through with our assistance in an effort to avoid litigation.

In three-quarters of the disputes we handled, we believe the parties walked away satisfied and that OGIS helped them to resolve

their disputes. You can read about those cases in our public case

log which is posted on our Web site.

A realization we quickly faced is that defining success is a challenge. The final results of our process is not both parties getting

exactly what they want, sometimes not even close, but if we are

able to help them in some way by providing more information or

by helping them understand the other party’s interest, we feel that

we have provided a valuable service.

When OGIS first set out, we spoke of changing a culture, a mind

set from one of reacting to a dispute in an adversarial setting to

one of actively managing conflict in a neutral setting. OGIS has a

unique perspective in the way FOIA works. We work side by side

with FOIA professionals and the agencies to improve the process

from within, and we also work closely with requesters on the outside to address shortcomings.

We have seen the importance of building relationships and trust

among the members of the FOIA community. It is an exciting process. We have just gotten started, but we are pleased to see so many

positive results in a short time.

Thank you, Mr. Chairman.

[The prepared statement of Ms. Nisbet follows:]

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Chairman ISSA. Thank you.

Mr. Metcalfe.

STATEMENT OF DANIEL METCALFE

Mr. METCALFE. Good morning, Mr. Chairman and members of

the committee.

As someone who has worked with the Freedom of Information

Act for almost 35 years now, I am pleased to be here to provide

an academic perspective on the act and its Government-wide administration.

My own views today are rooted in my work at American University’s Washington College of Law in recent years where I teach

courses in Government information law and direct the Collaboration on Government Secrecy or CGS for short. CGS came into existence in 2007 as the first academic center at any law school in the

world to focus on the subject area, in addition to maintaining an

extensive Web site as an academic resource for all those interested

in Government secrecy and transparency as two sides of the same

coin.

We have conducted a dozen day-long programs on the subject

with particularly heavily focus on the FOIA.

This academic perspective is also informed by decades of experience in leading the component of the Department of Justice that

discharges the Attorney General’s responsibility to guide all agencies of the executive branch on the complexities of the FOIA’s administration. I know, firsthand, both the difficulties to Federal

agencies that FOIA requests can pose and the challenges met in

encouraging proper compliance with the act, including new policy

conformity by all agencies notwithstanding those difficulties.

It is through that lens that I view the many ways in which the

openness in government community has been disappointed by the

surprising slowness and incompleteness of the Obama administration’s new FOIA policy implementation during these past 2 years.

This began with the Holder FOIA memorandum itself, as quickly

issued as it was. Contrary to all expectations and despite the precedent established by Attorney General Janet Reno not long before,

the Holder FOIA memorandum did not, by its terms, apply its new

foreseeable harm standard to all pending litigation cases where it

could have had an immediate, highly consequential impact. Rather,

it contained a series of lawyerly hedges that appear to have effectively insulated pending cases from it.

As one of the speakers at CGS’ FOIA Community Conference in

January pointedly observed, the FOIA requester community is still

waiting to see a list of any litigation cases in which the foreseeable

harm standard has been applied to yield greater disclosure. There

is a very strong suspicion that there are few, at best, and perhaps

even no such cases. Thus, the best possible opportunity to press for

full adoption of the standard throughout the executive branch in a

concrete, exemplary fashion was lost.

Neither did the Holder FOIA memorandum or its initial implementation and guidance take the expected step of directing agencies to reduce their backlogs of pending FOIA cases. Whereas the

Reno FOIA memorandum and its implementing guidance had immediately confronted that difficult subject, their 2009 counterparts

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contain hardly a word about it, let alone a direction to reduce any

backlog. That did not come until the broader Open Government directive was issued in December 2009. This led to the Department

of Justice straining at this time last year to claim Governmentwide backlog reduction progress based upon new annual report statistics that hardly could be connected to what the Obama administration actually had done.

This remains a matter of concern today for more than one reason. First, there is the awkward fact that the Justice Department’s

own FOIA backlog has not been reduced in the past year. Rather,

it has been allowed to worsen.

When the lead Government agency for the FOIA fails in its entirety to reduce its own backlog, it makes it much harder to press

other departments and agencies to do so. This do as I say, not as

I do, problem is exacerbated by the fact that the Department’s high

visibility leadership offices, the Offices of Attorney General, Deputy

Attorney General and Associate Attorney General, saw their own

numbers of pending requests increase in this past year by an aggregate figure of nearly 33 percent. This makes it impossible to

lead by example.

Turning to the FOIA’s exemptions, the one that cries out for immediate attention is, of course, exemption 2. This is because Federal agencies have been for nearly three decades using the so-called

High 2 aspect of the exemption to withhold sensitive information,

the disclosure of which could reasonably be expected to enable

someone to circumvent the law, especially in the post-9/11 context.

Ten days ago, the Supreme Court firmly ruled in Milner v. Department of the Navy, that this longstanding interpretation of exemption 2 is incorrect. As of that date, High 2 simply ceased to

exist. This means that the large amounts of information that agencies have regularly withheld under exemption 2 alone are no longer

properly withheld on that basis. It places agencies in an immediate

quandary over how to handle such sensitive information both at

the administrative level and in FOIA cases pending in court.

I think the summary of the position with respect to exemption

2, in the interest of time, is that this committee does need to address it with nothing less than a wholesale rewrite of the exemption carefully contoured to protect security sensitive information

with a firm harm standard.

In conclusion, I also want to mention something briefly about exemption 3 because I think the committee will also want to pay attention to that. I know it struggles with the proposed new exemption 3 statutes that it tries to flag for attention, but there is also

the matter of the existing exemption 3 statutes.

This past year, CGS conducted an academic study of this subject

by first compiling a list of the statutes invoked, more than 300 of

them, and in summary, we found nearly half of them were not

properly qualified to be invoked as exemption 3 statutes.

The committee could take this groundwork if it chooses and

buildupon it simply by asking each agency that reports using a

questionable statute under exemption 3 to look into why and how

it is doing so. I daresay that if the committee were to take such

a step, it would, at a minimum, result in dozens of agencies realizVerDate 11-MAY-2000 10:51 Sep 14, 2011 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67618.TXT KATIE PsN: KATIE
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ing that many dozens of the statutes it now regularly uses, are not

truly exemption 3 statutes at all.

Thank you for the opportunity to testify today and I look forward

to answering your questions.

[The prepared statement of Mr. Metcalfe follows:]

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Chairman ISSA. Thank you.

Mr. Blum.

STATEMENT OF RICK BLUM

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

Cummings and members of the committee.

I coordinate the Sunshine in Government Initiative, a coalition

of media groups dedicated to prompting transparency and accountability in government.

FOIA is a vital tool to identify problems in government and society. Because of FOIA, the public learned that meat in school

lunches has been held to a lower safety standard than meat supplied to adults and firefighter safety equipment would not work

well at high temperatures or when wet and yet journalists comprise only about 6 percent of all FOIA requests. Why? There are

several reasons, none surprising.

Some are long delays and backlogs that persist in every administration, no matter which party controls the White House, few consequences for agencies improperly denying and delaying requests;

and most journalists simply don’t have the luxury to wait or fight

bureaucratic battles and move on to the next story.

The most successful FOIA filers are the most organized and patient. Despite some improvements from the President’s transparency efforts, reporters filing FOIA requests are seeing little improvement on the ground. I would like to focus my comments on

the costs of FOIA, troublesome statutory exemptions to FOIA

under exemption 3, as Dan mentioned, and the use of technology

to better manage the FOIA process.

First, the cost of FOIA, the government is spending more money

on the FOIA process. Federal spending on FOIA is up 35 percent

in 2 years. In 2010, agencies reported spending nearly $400 million

to process FOIA requests. At the same time, the investment in

FOIA can save taxpayer dollars by shining a light on what Government is doing. Let me give you an example.

The Washington Post tied good reporting with FOIA to show that

farm subsidy payments meant as a safety net for struggling farmers were going to wealthy farmers and suburbanites. Proposed reforms to the subsidy program would save taxpayers an estimated

$228 million in the first year and $21⁄2 billion over 10 years. We

have no position on farm subsidies, but it is worth noting these

changes would pay for most of the Government’s FOIA expenses.

That is just one set of FOIA requests.

Let me also address statutory (b)(3) exemptions. These are exemptions that are written into the law. These undermine FOIA’s

presumption of disclosure. Our Coalition spends considerable resources fighting defensively against the worst of these proposed exemptions. We looked at agency reports over the last decade that

count how many statutes there are, similar to what Dan did. We

found, when you eliminate duplicates, Federal agencies cited at

least 240 different statutes, it may be over 300, in denying FOIA

requests.

For Sunshine Week, ProPublica, a nonprofit investigative journalism center, took our data and created an easily searchable online data base of these exemptions and launched it this week. Why

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protect the identity of honeybee handlers or watermelon growers,

or certain pigmy owls at a particular national park or more significantly, losing contract bids submitted through competitive bids for

Federal contracts? Separate (b)(3) statutes bar the disclosure of all

these things.

Our hope is to learn from readers when these exemptions are

used and when they are abused. We are crowd sourcing oversight

of FOIA.

Mr. Chairman, the provision in the Dodd-Frank reform law that

you successfully opposed with others was just one of these (b)(3) exemptions. Let me suggest several steps to better limit exemption

(b)(3) statutes.

First, in the House, this committee should receive limited referral of the particular provisions within legislation that affect FOIA,

including (b)(3) statutes.

Second, in its regular review of legislation, the Office of Management and Budget should evaluate an agency’s proposed (b)(3) exemptions when they are proposed.

Third, any author, sponsor or reviewer should first assess whether existing exemptions would suffice without a new exemption or

the proposed exemption is justified or any foreseeable harm results

from disclosure is greater than the public benefit from disclosure

and if the statute is narrow in scope, what is proposed is narrow

in scope and specific and that there is adequate public notice so we

can have an open debate about them. These steps would go a long

way to avoid cutting overbroad or unnecessary holes into FOIA.

Let me finally turn to the use of technology to better track FOIA

request responses and agency performance. For the public to help

improve FOIA, the FOIA process itself should be more transparent.

We see OGIS as an important part of this and they are already

helping to clarify the process for requesters and provide best practices for agencies.

At a systemic level, the Justice Department’s new FOIA.gov is a

vast improvement. We hope it grows into a more robust system so

the public can view past requests and responses, agencies can better manage caseloads and we all can track in real time the backlogs and whether agencies are staying ahead rather than falling behind. Mexico has such a system and it makes perfect sense for the

United States.

Thank you, Mr. Chairman, for the opportunity to testify and I

look forward to your questions.

[The prepared statement of Mr. Blum follows:]

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Chairman ISSA. Thank you.

Mr. Fitton.

STATEMENT OF TOM FITTON

Mr. FITTON. Thank you, Mr. Chairman, Congressman

Cummings. We appreciate the renewed focus on transparency by

this committee.

Essential to Judicial Watch’s anti-corruption and transparency

mission is the Freedom of Information Act. We have nearly 17

years experience in using FOIA to advance the public interest and

Judicial Watch is without a doubt the most active FOIA requester

and litigator operating today.

The American people were promised a new era of transparency

with the Obama administration. Unfortunately, this promise has

not been kept. To be clear, the Obama administration is less transparent than the Bush administration. We have filed over 325 FOIA

requests with the Obama administration and filed 44 FOIA lawsuits against the administration to enforce FOIA law. Administratively, agencies created additional hurdles and stonewalled even

the most basic FOIA request during this administration.

The Bush administration was tough and tricky, but the Obama

administration is tougher and trickier. For instance, we recently

asked the Transportation Security Administration for documents

detailing passenger complaints about TSA pat-downs and imaging

procedures at airports. The response, which is attached to my written testimony, TSA asked us to define what we meant by complaint. Once we are forced to go to Federal court, the Obama administration continues to fight us tooth and nail. The litigious approach to FOIA is exactly the same as it was in the Bush administration. So one can imagine the difficulties we encounter litigating

these issues in court against the Obama Justice Department.

Judicial Watch has been digging hard into the role, for instance,

of political corruption and its impact on congressional oversight of

Fannie and Freddie, which collapsed in 2008. Government has

spent upwards of $153 billion on these entities and they have

taken complete control of them.

We have asked for documents about political contributions. We

have asked for other documents. The administration’s new position

under the Federal Housing and Finance Administration is that

Fannie and Freddie are not agencies subject to FOIA. Not one document those agencies have created over the time were subject to

disclosure under the law, which we believe is contrary to public interest and to the law.

I cannot quite fathom how this administration can want a new

era of transparency while over $1 trillion in Government spending

is shielded from practical oversight and scrutiny by the American

people. I am not only talking about FHFA on that, Fannie and

Freddie, I am talking about the Treasury Department, the Federal

Reserve, all the agencies involved in the bailouts. This Government

is growing by leaps and bounds, for better or worse, and FOIA and

transparency are simply not keeping up.

This committee might also be interested to learn the truth behind the Obama White House repeatedly trumpeting the release of

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tion is refusing to release tens of thousands of visitor logs, repeating a Bush administration last ditch legal effort that the visitor

logs are not subject to the Freedom of Information Act. The Secret

Service is part of Homeland Security. They create the logs. It is obvious they are subject to FOIA.

While the Obama administration attempts to take the high

ground by voluntarily disclosing them, it shields tens of thousands

of others from public disclosure in defiance of FOIA law.

In the fall of 2009, we were invited by the Obama White House

to visit and talk about this very issue. We were told by then special

counsel to the President, Norm Eisen, who was in charge of these

issues, will you please publicly praise our transparency efforts. It

will be good for you and the Obama administration. Of course they

didn’t want to release these records to us as they are required

under law, so we have filed a lawsuit. Don’t invite us to your office,

you never know what is going to happen.

To date, every court that has reached this issue, there have been

four court decisions that have said these records are subject to

FOIA. We even got these records under FOIA from the Bush administration. We know now from published reports, White House

officials have been meeting with lobbyists at a nearby Caribou coffee shop across the street to avoid their trumpeted voluntary disclosure of logs. They don’t want these people visiting the White

House, so they meet them elsewhere because they don’t want to tell

the American people who they are visiting with.

We have asked for records about the Obamacare waivers.

Months, not one document. We asked for records about that illegal

alien who allegedly killed a nun in a drunk driving incident. Final

report last fall, we asked for the final report, we sued. They said

they would give it to us in a week. Then they told us in the court,

that final report is a draft report. You can’t get the draft report,

we are still working on the final report. We just got the final report. It was dated November 24th. They told us they were working

on a final report that had been dated 3 months previously. This is

the sort of gamesmanship and frankly only a government, political

appointee would come up with that sort of craziness in terms of

FOIA responses.

I draw your attention to the end of Exhibit B. We asked for the

FBI file of Ted Kennedy. It took us four iterations to get the final

file. In the end, they were proposing, we fought back and successfully uncovered, to secure as national security information, a comment from 40 years ago by a State Department official that Ted

Kennedy was a brat. It shows the FBI is not above politics in how

it evaluates what to release to the American people. You can imagine why they would be hesitant to release this information.

As a frequent requester and litigator at Judicial Watch, the

Obama administration deserves a failing grade on transparency.

This government is too big and they are not as concerned as they

should be about the transparency with the actual work our Government is doing.

[The prepared statement of Mr. Fitton follows:]

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Chairman ISSA. Thank you.

For the record, I am sure I was a brat 30 to 40 years ago.

Mr. FITTON. I am sure we all were. It is not a security issue.

Chairman ISSA. It won’t be for me.

Ms. Canterbury.

STATEMENT OF ANGELA CANTERBURY

Ms. CANTERBURY. Chairman Issa, Ranking Member Cummings,

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

today.

I am the Director of Public Policy at the Project on Open Government Oversight or POGO, which is an independent, nonpartisan

watchdog that champions good government reform.

It is a particular pleasure to be here with you today to talk about

FOIA, the Freedom of Information Act which for nearly 45 years

has been a cornerstone for our democracy and for open government.

On day one, President Obama committed to creating an unprecedented level of openness in government. This administration certainly has put unprecedented energy into this goal, but how is the

government doing.

It takes time to build an openness infrastructure and change a

culture resistant to change and scrutiny. If the measure is

proactive disclosure of information, there have been leaps in innovation. Just this week, the administration launched FOIA.gov

which has terrific potential for improving public access to information like Data.gov, Recovery.gov and USASpending.gov.

However, if FOIA is the yardstick for openness, then we haven’t

gotten very far yet. Some mixed, but overall disappointing reviews

were delivered this week through independent studies. The Knight

Survey found that the number of agencies that make concrete

FOIA reforms jumped form 13 in 2009 to 49 in 2010. However,

they included 90 agencies in their survey and 17 were still working

on the survey’s FOIA requests after 117 business days, 4 did not

even acknowledge that they had received a request.

The new analysis from the Associated Press also yielded mixed

results. On a positive note, those studies showed that the use of

withholding for inter and intra agency information or exemption 5

decreased which the administration reported this week was a 26

percent drop last year. Also, the administration noted that 93 percent of requests were leased in full or part.

However, the AP also noted that the DHS, Department of Homeland Security, cut its backlog by 40 percent in part by referring

thousands of cases to the State Department. State ended up with

a backlog twice as big as they had last year. Not only is this a shell

game but referrals are a major cause for delays.

In sum, the overall picture does not look markedly better for

FOIA operations and the bottom line is, as Chief Justice Roberts

recently acknowledged, there are a large number of FOIA requests

and ‘‘it takes forever to get the documents.’’

However, there are many ways in which this committee can improve the status quo through oversight and legislation. First, it is

time for FOIA to move fully into the digital age, making most requests a relic of the past. A first step to better serve the public and

save money over time would be to put online in a common data

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base all FOIA logs, request tracking and the responses. A guiding

vision for the future should be making all public information available online in a timely manner.

Second, we need better information on how FOIA is working.

POGO supports the Faster FOIA Act reintroduced by Senators

Lahey and Cornyn this week to create an independent, bipartisan

body to study how to improve FOIA. In addition, we need to know

more about who is reviewing FOIA requests and why, and how this

impacts disclosure.

Chairman Issa is investigating possible political interference in

FOIA at DHA. If founded, these issues are of great concern. FOIA

should never be used for political purposes and the identity or affiliation of a requester should never impact the response.

POGO, however, is also concerned with the involvement of government contractors in FOIA at DHS and at other agencies as well

as the interference with IG independence, all of which should be

examined and perhaps independently investigated.

Third, this committee should take a closer look at statutory exemptions gone wild. POGO has long been concerned about the proliferation and scope of these statutory exemptions or (b)(3)’s as well

as the lack of oversight. Last year, POGO helped to repeal an extremely broad statutory exemption for the SEC, along with the

chairman and the ranking member, that was enacted in the DoddFrank bill, the Financial Reform Act.

The controversy and ultimate repeal of the secrecy provision is

illustrative of the potential dangers of statutory exemptions that

sweep too broadly. Hopefully, it also serves as a cautionary tale to

agencies that might seek unnecessary exemptions.

Fourth, as proposals to replace the exemption thrown out by the

Supreme Court surface, this committee must resist the pressure to

substitute it outright. A thoughtful approach must be taken. If

there is a demonstrated need to protect information that existing

exemptions no longer cover, it must be very carefully considered.

POGO hopes that you will be vigilant in balancing the public’s

right to know with other interests. Too often overt secrecy has not

only impaired the promise of FOIA, but also has put the American

people at risk. Abuse of FOIA over classification, quasi-classification and the suppression of whistleblowers are the most common

tools of secrecy.

In conclusion, while FOIA is the central mechanism for open government, there are several other openness issues ripe for legislative

reform including the Transparency in Government Act introduced

today by Ranking Member Cummings, which we support.

Last, to fulfill a pledge to America, this Congress must begin to

proactively disclose congressional information, serving as a model

for the new paradigm of FOIA.

I thank you and I look forward to the discussion and your questions.

[The prepared statement of Ms. Canterbury follows:]

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Chairman ISSA. I thank you and I was with you right up to that

last part, then it got a little confusing.

First of all, thank you all. Your statements were great and obviously there is some additional material each of you will be placing

in the record.

I now recognize myself for 5 minutes.

I would begin on a sad note for all of you. The whistleblower, one

of two people who voluntarily came in and were interviewed with

an attorney from the Department of Homeland Security, had her

title removed, her office changed and her job responsibilities

changed or eliminated the very next morning.

So it is this committee’s opinion, at least on the majority’s side,

this constitutes a demotion in violation of the spirit of the Whistleblower Act and it is our intention to openly attempt to get her reinstated and to deal with the politicization in this case or the

politicization of FOIA requests by referring requests and at least

at the latest new stated truth. I always call it new stated truth because I wouldn’t want to say someone lied, but the original truth

was they didn’t do it, then they didn’t do anything other than send

them for information, were now down to they didn’t delay them

more than 3 days and we have not yet gotten to exactly how much

changes or denials came as a result of sending otherwise completed

FOIA requests to political appointees. That is a disappointment I

wish I didn’t have to bring up today.

Ms. Nisbet, I am delighted to hear your testimony but I am confused, and that happens a lot around here, particularly to me. You

said, since September 2009, you have handled, a little over a year,

541 cases. Our records show that, for example, in fiscal year 2009,

you mediated 541, correct?

Ms. NISBET. Mr. Chairman, it is a little confusing when you start

talking about those numbers.

Chairman ISSA. Why don’t we do this.

Ms. NISBET. I am happy to try and clarify as best I can.

Chairman ISSA. Since there is so little time, for the record, would

you clear up for our committee staff if you have processed 541 and

the entire FOIA statistics for the government for fiscal year 2009

were only 557 received and 612,000 processed, so your number is

substantially similar to the gross amount. We would like that resolved for the record.

Mr. Fitton, I guess my question to you is, in addition to what you

said, if you would provide the committee with additional materials

as to specific areas in which we could use our powers, either

through cooperation or subpoena, to get some of the information

you believe should most be brought to the attention of the Congress, not be brought to you around litigation but it is one in which

we would be particularly interested in seeing what it is they are

not showing you. I would appreciate it if you would do that for the

record.

Mr. FITTON. Certainly.

Chairman ISSA. Ms. Canterbury, your organization has been extremely helpful to all of us, and I thank you for that. Many of the

organizations do a great deal in Washington and around the country. Yours has been proactive in a way that we don’t always appreciate what we do.

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I wanted to give you something for the record and ask your interpretation. We do not make these public out of my office currently,

but it is a possibility that we would.

My office received 31,138 inquiries from constituents in calendar

year 2010. We did that with one legislative respondent who answered all of them. They centered around 300 major issues. Obviously they are not all different.

The Department of Justice received 63,682. They used 425 full- time individuals to do this work costing a total of $60 million. My

one person cost somewhat less.

I would ask each of you to respond. The biggest thing we think

matters is that once you answer a question, you now it should be

answered for one, it should be answered for all. How much of that

cost across government do you believe would be eliminated if in

searchable data form, every answer once given was made simultaneously available to anyone who wanted to search a data base so

that those questions would not come in again and take a plethora

of study to give substantially the same information depending upon

how clever the questioner was versus the answer person?

Ms. NISBET. Certainly millions and billions, I would say. Over

time, very quickly it would add up to a huge amount of savings and

allow the government to do other things.

Chairman ISSA. I will take you in any order, but Ms. Nisbet,

since you see so many of these and obviously, you saw cases in

your 541 that were substantially the same as other cases, so you

were arbitrating or mediating cases where different people were

asking for substantially the same information, correct?

Ms. NISBET. Certainly there are multiple requests from different

requesters for the same kinds of records. We would say absolutely,

it would be a great goal and I think there are people looking to do

exactly as you suggest which is to have one place where people can

make requests, where they can track the responses to them and ultimately all the records that are released are available, easily

searchable so that people can see what is already out there.

Chairman ISSA. Anyone want to comment on that, something

along the lines of the consolidation of answers?

Mr. METCALFE. I would just point out, Chairman Issa, that there

is indeed an existing statutory mechanism. It is called the frequently requested record provision that was added to the act in

1996, subsection (a)(2)(d).

Chairman ISSA. And seldom used.

Mr. METCALFE. But it provides for that type of thing with a numerical threshold, that threshold being the first request is processed, records are disclosed and then if the agency either believes

or receives two more requests at hand, then it is obligated by law

to make it affirmatively available. There is a mechanism in the law

that is at that number. Congress could, of course, lessen that number from two or three down to zero.

Chairman ISSA. Thank you. Thank you all.

Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

Mr. Chairman, you started your questioning with some very

strong allegations and certainly if they were true, this is one Member who would be 100 percent with you.

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One of the things I said from the beginning when we first began

this Congress is that we want to be fair to the folks. I think we

can put out allegations, they sit out there and the press writes

them up and a lot of times, some things are cleared up later on and

still people are harmed. I know that is not your intention, so I

would like to make two points about the letter you sent yesterday

alleging retaliation against the DHS employee who was interviewed by our committee.

It appears there are two major factual inaccuracies in the letter.

First, your letter asserted that this DHS employee was demoted. In

fact, she had competed for a new Senior Executive Service promotion and she did not receive it. A panel of senior career and noncareer employees conducted a detailed competitive process and the

person who was selected was better qualified according to DHS. We

will discover that later on, I am sure, and look into that. Committee staff were aware of this because they discussed it in several

interviews they conducted with DHS employees.

Second, your letter asserts that the DHS employee was demoted

the day after she conducted her interview with the committee staff.

This is also incorrect. Her interview with the committee was on

March 3rd. She was informed that she did not receive the SEC promotion on January 10th, nearly 2 months earlier. Committee staff

also knew this fact because they were told on a joint conference call

with DHS the day before you sent your letter.

Finally, as a result of these factual inaccuracies, your letter assumes conclusions that are not supported by the actual evidence.

In fact, they appear to directly contradict information the committee has already collected. Despite the fact the minority staff raised

these concerns directly with your staff, you chose to send this inaccurate letter anyway.

Since the March 16th letter is a letter to you, I am going to request unanimous consent that the DHS response to your letter

which was sent last night be entered into the hearing record.

Chairman ISSA. I object based on the fact that we have not yet

received that letter. We certainly will be happy when we receive

the letter apparently the minority and the administration wrote,

we look forward to seeing it when it arrives and then consider it.

Mr. CUMMINGS. Thank you.

Mr. Chairman, I think we have to be very careful. You just complimented our public servants and I want to make sure they are

treated in a fair fashion. I would make that argument whether it

was employees on that side of the aisle or this side of the aisle, no

matter where they are. People are human beings and they have to

go back to their families. People look at this, see it on C-span, see

their names in the Washington Post and then if there is no clarification, it is just out there, it is just a headline and that person

can be ruined for the rest of their lives without the ability to get

a job or accomplish much of anything. I have seen that happen to

too many people. I just don’t want it to happen to another human

being.

Mr. Metcalfe, on September 23, 2010, President Obama addressed the United Nations’ General Assembly. In his address, he

highlighted the importance of a world that fosters openness. This

is what he said, ‘‘The strongest foundation for human progress lies

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in open economies, open societies and open governments. In all

parts of the world, we see the promise of innovation to make government more open and accountable. When we gather back here

next year, we should bring specific commitments to promote transparency to fight corruption, to energize civic engagement, to leverage new technology so that we strengthen the foundations of freedom in our own countries while living up to the ideals that can

light the world.’’

Mr. Metcalfe, in your experience, has any other American President done anything at this level to personally promote government

openness on the world stage?

Mr. METCALFE. No, Congressman Cummings. As a matter of fact,

I think it is fair to say that action by President Obama is not only

unprecedented, but it goes much further than any other President

has gone to be involved in fostering transparency internationally

and promoting the U.S. leadership role in that area.

Not only did he do that in September, but he also in November

of last year while in India entered into a very explicit partnership

with that nation aimed at fostering openness in government.

Mr. CUMMINGS. Mr. Chairman, I ask for the 1 minute and 38 seconds that you got.

Chairman ISSA. Of course.

Mr. CUMMINGS. Ms. Canterbury, Danielle Brian, the executive director of your organization, the Project on Government Oversight,

made this statement about President Obama’s efforts. She said,

‘‘There is no question this is the first President in my experience

who has personally elevated open government issues to the extent

that Obama has.’’ Are you familiar with that statement?

Ms. CANTERBURY. Yes, I am, sir, and I would agree with it.

Mr. CUMMINGS. Do you agree with your President?

Ms. CANTERBURY. Yes.

Mr. CUMMINGS. Another one of your colleagues, Tom Blanton is

the Director of the National Security Archive at George Washington University. This is what he said about the President’s efforts.

‘‘President Obama is the first President to invite transparency advocates into the Oval Office to talk about open government.’’ In addition, the organizers of the National Freedom of Information Day

Conference are giving President Obama an award this week to

honor his deep commitment to an open and transparent government. I want to be clear, everyone I just quoted also believes much

more can be done. I want to make it clear that I believe much more

can be done.

Our job is to promote these gains through continued oversight

and to push for even greater transparency measures in Congress.

That is why today we introduced the Transparency and Openness

in Government Act. Ms. Canterbury, our legislation consists of five

bills that all passed the House overwhelmingly with Republican

and Democratic support last session but were not enacted. I think

I heard you say you support that legislation?

Ms. CANTERBURY. Absolutely, sir, we do.

Mr. CUMMINGS. Finally, I have about 15 seconds, do you think

our committee should mark up this legislation at the next available

opportunity?

Ms. CANTERBURY. Yes.

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Chairman ISSA. The gentleman’s time actually is 32 over the additional time we gave you, but thank you very much.

For everyone’s edification, we are going to take one more round

of questions, we will break and then Mr. Clay will be first up when

we come back. We will be out for about 15 to 20 minutes. As soon

as somebody is back in the chair, we will start again so don’t go

too far.

Mr. Walberg.

Mr. WALBERG. Thank you, Mr. Chairman, for that latitude.

Thank you to the witnesses for being here today and expressing desire for sunlight.

Mr. Blum, let me ask you, you have called the Obama administration’s Open Government initiatives a ‘‘road map for transparency.’’ In your opinion, has that road map been effectively used

by Federal agencies?

Mr. BLUM. Oftentimes, maps get loss, they get put on the car

seat and the kid rips them up or you stick them in a pocket and

they are hard to find. I think that some agencies have that map

and are following it and I think some agencies don’t know where

the map is. I think you see that in some of the compliance statistics

and I think it is all over the map.

Mr. WALBERG. What are the most egregious examples of agencies

that have lost the map, use it for a litter box or whatever else?

Mr. BLUM. It is hard to come up with specific examples, but I

think the issues exist today, they existed yesterday, they exist in

this administration, the last administration and since the creation

of the FOIA itself. It is the long delays.

We have one reporter I know of who was working during Hurricane Katrina, literally in the floodwaters trying to figure out the

chemicals that were in those waters because his readers were asking him, can we come back, can we come home, can we start getting on with our lives? He was trying to give them that answer.

Through FOIA, he couldn’t get an answer.

In fact, he actually moved because he had to evacuate and let the

agencies he had requested information from have his new address,

send this information here and they sent it back to the address of

his destroyed home. It is really these longstanding problems.

Ms. Nisbet, OGIS should not have to remind agencies to return

phone calls or to even pick up the phone.

Mr. WALBERG. Thank you.

Mr. Fitton, your organization’s Web site includes an archive of

documents that you have received under FOIA. You make these

documents electronically available to any member of the public. Do

you think the government should also provide electronic access to

already released records?

Mr. FITTON. Yes, but that only goes so far. My concern is that

these document dumps that the administration is highlighting are

documents that you largely can get if you know where to look otherwise and are not a matter of great public interest.

The FOIA fights we get into are matters of public controversy.

That is where the rubber meets the road on FOIA. If the agencies

release information that makes them look bad or may highlight an

issue they don’t want to talk about, on that issue that is where we

face the most resistance.

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We appreciate the additional information on the internet. The

government is doing so much, the more on the Internet, the better,

but on issues of political controversy or corruption allegations, you

are not going to find that on the Internet. No agency is going to

put it up there.

Normally, I would think you would get the email traffic, for instance, that you want about a specific decision. That is not necessarily going to be posted on the internet. I don’t know if it is a

good idea to do that.

Mr. WALBERG. Should they be?

Mr. FITTON. I don’t know. Do we think that Government bureaucrats should post their emails almost immediately after sending

them? Maybe. The Government is asking us to do a lot of things,

requiring us to give them a lot of information, has a lot of control,

but the accountability is lacking, especially given the dramatic expansion of Government we have seen recently.

Mr. WALBERG. Do you have some examples of cooperative agencies and how they have worked to meet not only the rule of the

law, but the spirit of the law your requests?

Mr. FITTON. The letter of the law is almost never followed. The

State Department is an interesting agency. They take forever to

give you a response, the response they give you is usually something that you are asking for. The Department of Justice is terrible. As I said in my testimony, the financial agencies are the

worse. The Treasury Department is probably the worst in our experience, which is the most troubling given the financial crises we

have gone through and all the decisions that have been made related to the spending of our money to the tune of $1 trillion or so,

that have gone through Treasury and related agencies.

Mr. WALBERG. Thank you, Mr. Chairman. I yield back my time.

Chairman ISSA. I thank the gentleman. As we take a 20 minute

recess, I would note to the ranking rember that by unanimous consent, I would ask that both yours and corresponding letters be

placed in the record, along with any supplementals you might want

to put in so there may be a complete review of what quite frankly

is a disagreement about somebody getting a demotion but more importantly, of interest to all the people who are testifying here

today.

I thank the ranking member.

Mr. CUMMINGS. Thank you, Mr. Chairman.

Chairman ISSA. We stand in recess until 5 minutes after completion of the last vote which I will ask to be posted on the monitor

so you will know when we are done.

We stand recessed.

[Recess.]

Chairman ISSA. Thank you all for your patience.

The Chair will now recognize the gentleman from Missouri for 5

minutes.

Mr. CLAY. Thank you, Mr. Chairman.

Let me start with Ms. Nisbet. As the FOIA ombudsman, Ms.

Nisbet, you and your staff have done a great job in handling and

disposing of hundreds of cases. As an original sponsor of the bill

that created OGIS, I am proud of the important work that you are

doing, but your role is so critical and ultimately saves the taxVerDate 11-MAY-2000 10:51 Sep 14, 2011 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67618.TXT KATIE PsN: KATIE
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payers so much money that I want to make sure you have what

you need. Is your funding and staffing sufficient to meet your responsibilities under the law?

Ms. NISBET. Thank you, Mr. Clay, for those very kind remarks.

We are working hard, we have a staff of six professionals who

are very dedicated and hardworking, and I think in this budgetary

environment, we know we are going to our very best to make the

most with what we have.

Mr. CLAY. With whatever amount you have, you are going to accomplish your mission then?

Ms. NISBET. Yes, sir.

Mr. CLAY. Thank you for that.

Ms. Nisbet, we have heard unsubstantiated charges of

politicization in the FOIA process at some agencies. Are there legitimate reasons why top agency executives and others should

know about certain FOIA requests before the releases are made

and isn’t this very different from having appointees make release

decisions?

Ms. NISBET. Mr. Clay, I think you stated that very well. We

would have to agree that there is a difference and notice is one

thing and approval is another. I understand the committee is looking into this.

Mr. CLAY. Thank you for your response.

Mr. Blum, you say the President’s FOIA efforts show impact but

that some agencies have been slow to improve. These problems go

back to at least the previous administration which was significantly less transparent and much less willing to disclose. In fact,

the previous administration changed the official presumption to

withholding rather than disclosing. Thankfully, President Obama

reversed that presumption back to disclosure to what it was during

the Clinton administration.

Do you think the issue is simple agency reluctance to change or

agency culture to not disclose, or are there other reasons for those

agencies who are not complying with the President’s clear direction?

Mr. BLUM. How much time do we have here? I think there are

many reasons. I think in some cases, it is that there is a reluctance

to disclose when there is doubt because there is a perception that

there is greater consequences if you disclose something that you

shouldn’t. If you don’t disclose it, even though you probably should,

who is going to find out, the requester, maybe not others.

I think there is a reluctance to disclose that is inherent. I think

there is a lack of funding. Ms. Nisbet answered the question about

her funding, but when you look at the CBO score for her office, it

was many times more. They estimated it would take her many

times more, much more money for her to actually do the job than

she actually has. I think that is an important factor as well. I think

that is true for agencies as well.

I also think that the system does need to be changed so that you

create more efficiencies. Once a request has been responded to, get

those records up online, make them searchable.

Mr. CLAY. It sounds to me like statutory (b)(3) exemptions are

more problematic and responsible for more denials, is that correct?

Mr. BLUM. From the numbers that I saw in the studies, yes.

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Mr. CLAY. On top of your good work to make the public aware

of these varied exemptions, what do you recommend we do to fix

the problem?

Mr. BLUM. I think if this committee could take a hard look at

these exemptions when they are proposed, make sure they are absolutely necessary, that they are narrowly described, that they

don’t cover additional information, make sure the drafting is narrow, make sure they are publicly justified and make sure we all

have a chance to weigh in. I think that would help. I think there

needs to be awareness of what FOIA is amongst all the committees

of Congress.

Mr. CLAY. Critics have accused this administration of being more

secretive than the previous one. Do you find that to be accurate?

Mr. BLUM. I don’t think it is the place of our coalition to try to

answer that question.

Mr. CLAY. Thank you and I yield back.

Chairman ISSA. I thank the gentleman.

The Chair now recognizes the gentleman from Arizona, Dr.

Gosar, for 5 minutes.

Mr. GOSAR. To the panel, outside of circulated memos, what true

or real hard core pursuits of FOIA enforcement have you seen from

this administration and Department of Justice? I would like to

start with Ms. Nisbet.

Ms. NISBET. I do know all FOIA professionals in government in

the executive branch agencies have received guidance on the President’s memos, on Attorney General Holder’s memos, not only written guidance but FOIA training which is regularly done not only

by the Department of Justice but by agencies as well on their FOIA

responsibilities. Certainly the guidance and the word is getting out

there. It does take time.

Mr. GOSAR. Mr. Metcalfe.

Mr. METCALFE. Dr. Gosar, as my written testimony explains in

even greater detail, I think a major aspect, a critical aspect of implementation is being able to show examples, concrete examples so

people at other agencies can see what actually has occurred first

and foremost in litigation, perfect opportunity for examples, and

then even examples of actual discretionary disclosures that have

been made under the foreseeable harm standard at particular

agencies, especially at the Department of Justice, the lead.

That is a major part of implementation that I think has been

lacking. It probably will come in time. It almost has to as a matter

of good common sense but the fact that we are here 2 years after

the fact, even on the Holder memorandum, and there has not been

one litigation case cited despite people in the openness in government community clamoring for that, where that has taken place is

telling. It stands in very stark contrast with what happened and

what I know firsthand happened in the implementation of the Reno

memorandum during the Clinton administration.

Mr. GOSAR. From your expertise here, we have seen an unprecedented tactic of choosing laws to uphold and ignore. Arizona is a

perfect example of that. I am from Arizona, for your information.

Do you see an ability, something we could do to have better access

and revitalize America’s access to FOIA, that the administration

and the Department of Justice could do?

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Mr. METCALFE. When you use the word we, Dr. Gosar, do you

mean this committee first and foremost?

Mr. GOSAR. Yes.

Mr. METCALFE. I think a very simple step this committee could

take right away with respect to the exemption 3 statutes is to focus

on the roughly half of them that our academic study showed do not

qualify as exemption 3 statutes to begin with. That would be an

easy hit, so to speak. You could buildupon the research that we did.

Beyond that, the Department of Justice could follow more the

model of what was done during the Clinton years to implement by

example. That is just a key thing that doesn’t seem to be there.

Mr. GOSAR. If each one of you had to pick an agency, which is

the worst in compliance with FOIA? Ms. Nisbet.

Ms. NISBET. Dr. Gosar, that is a very tough question to ask and

I am not sure that I feel comfortable answering it. We are still

looking at agencies. We are very new, we are still really beginning

to implement our mission.

Mr. GOSAR. I would like to see us really pursue this because this

is very important to the American public. Mr. Metcalfe, do you

know?

Ms. NISBET. Dr. Gosar, may I just add I am going to echo what

Mr. Metcalfe just said. That is, this committee looking at FOIA,

looking at the issues of transparency and openness is very, very

important and really sends a strong message. I thank you for it.

Mr. GOSAR. I would like to take it a step further because in the

real world, mainstream America, when we see an example made

and reteach an agency how to do something, that makes a stronger

vantage point for everybody to follow. That is why I am asking the

question. Mr. Metcalfe, one word, which agency?

Mr. METCALFE. Again it is difficult to single out someone, but I

can tell you that prior to the time I retired in January 2007, I was

most disappointed by the Department of Treasury which has plummeted precipitously prior to that in the quality and effectiveness of

its FOIA performance. Since then, I am not sure that has changed.

Mr. GOSAR. Mr. Blum.

Mr. BLUM. I think it would be no surprise that I say, representing news media groups, that depending on the issue and the hot

news at the time, you are going to have difficulty. Over the last

decade, the post-9/11 environment, and two wars, the Defense Department and other intelligence agencies were very difficult because reporters were trying to get information from them.

Now, as the attention turns more to financial information and

conflicts over access, that is an area of concern.

As a quick example, to echo what these two witnesses are saying,

the Defense Department is very good in the process, not too much

drops between the cracks, they will tell you no quickly.

Mr. GOSAR. Ms. Canterbury, real quick.

Ms. CANTERBURY. I haven’t looked at the numbers to give you a

specific cite for which agency is doing the worse, however, in our

experience, we have had lots of trouble at the SEC that requires

more investigation and also the Department of Homeland Security.

Currently there are several troubling issues around their FOIA

practices including how they are using contractors in the process.

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If I could for a second address your previous question about

things the administration has done on FOIA, I think in addition to

the directives, the memoranda, the guidance and the work that is

being done at OGIS, the Open Government directive has also created a sort of open government infrastructure where FOIA has

played a large role, it has been featured. The agencies when they

prepare their Open Government plans, many of them, if not all,

had some FOIA improvement component.

I would say we weren’t completely pleased with POGO’s initial

Open government plans. We are part of a review process, an independent look at those plans, but we are just beginning and I think

improvements have already been made not only on those plans but

in the implementation of the Open Government directive and the

President’s memorandum on FOIA.

Mr. GOSAR. Thank you, Mr. Chairman.

Chairman ISSA. Thank you, Dr. Gosar.

The chair takes pleasure in recognizing the former chairman of

the full committee for 5 minutes, Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman. Let me thank

you and the ranking member for holding this hearing because I

think the timing is pretty good because this is Sunshine Week. To

have this hearing in Sunshine Week is very, very important.

Let me begin with you, Ms. Nisbet. FOIA has nine built-in exemptions of information that cannot be disclosed under a FOIA request, correct?

Ms. NISBET. Mr. Towns, there are nine exemptions, but they do

not all necessarily require that information be withheld. Some of

them do allow some discretion by the agency. I will give you an example.

Mr. TOWNS. Please do.

Ms. NISBET. Exemption 1 is national security information. If information is properly classified pursuant to the Executive order on

national security information, agency officials are not free to just

release it. In fact, they are prohibited from doing that. They have

to be extremely careful in the way they handle that.

Under other exceptions, for example, exemption 5, which incorporates certain privileges in civil discovery, and typically is thought

of as including deliberative process privilege or executive privilege,

attorney work product, attorney-client privilege, that is an exemption the courts have long held, does allow the Government to decide

whether or not it wants to essentially invoke the privilege so that

information particularly after the passage of time might be very

appropriate for disclosure. It does not have to be withheld.

Mr. TOWNS. Thank you.

I understand that outside of FOIA, there are over 200 other exemptions of information that cannot be disclosed under FOIA that

were written into laws passed by this Congress, is that right?

Ms. NISBET. I think the number of statutes that would be considered to fall within exemption 3, which incorporates other statutes,

is really a number that we not all quite sure about. In fact, I think

that is something this committee could look at, what those statutes

are and whether or not they are properly being used.

Mr. TOWNS. I am committed to open government and I am also

committed to closing some of these exemptions such as the one

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Chairman Issa and I completed last Congress in the SEC exemption. My question is, can OGIS, your agency, track new exemptions

contained in legislation before they actually become law? Can you

do that?

Ms. NISBET. I would like to say that we can and certainly, we

would try to do that particularly in partnership with some of the

other organizations that do track those things, but my understanding from talking to people who work very closely with all of you on

the Hill is that it is sometimes very difficult to spot those things

before they go through, so it really takes some vigilance from you

all as well as from the executive branch.

Mr. TOWNS. Mr. Blum, you made the suggestion that any new

FOIA disclosure exemptions be referred to the committee for review

before any new law is passed or any statute is amended. Do you

agree with this suggestion?

Mr. BLUM. Yes, we have advocated this position for many years.

Mr. TOWNS. Mr. Chairman, on that note, I yield back and say I

really appreciate the fact that you are having this hearing. I think

it is a very important hearing because we are talking about transparency and opening up government. I think in order to do it, we

would have to be involved in the process and we all have to work

together to get where we need to go. I want to thank you and the

ranking member.

Chairman ISSA. Will the gentleman yield?

Mr. TOWNS. I would be delighted to yield.

Chairman ISSA. Thank you for your friendship and support in the

last Congress and I commit to you not only are we going to do it,

but I have arranged with each of the subcommittee chairmen that

they are going to hold at least one FOIA related to their portion

of the government and we will deconflict it, so we will have at least

seven subcommittee hearings on this.

We are also forming a working group which I am very confident

you will be joining along with other parties, some of whom are at

the table today, to begin the process of fashioning FOIA reform not

just to deal with one exemption but to look at all of them that presently exist.

Thank you for your leadership in the past and I look forward to

us working together throughout this Congress.

Mr. TOWNS. Thank you very much, Mr. Chairman. I look forward

to working with you.

Chairman ISSA. Thank you.

Does the ranking member have additional questions?

Mr. CUMMINGS. None.

Chairman ISSA. I want to thank our panel of witnesses for your

testimony. I want you to know that the record will remain open for

5 legislative days. If any of you need additional time to respond to

questions or to revise and extend things you may have said, please

let the committee know and the chairman and ranking member, by

unanimous consent, will extend that to allow your information to

get in. This is extremely important.

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I would close by asking, are all of you willing to come back again

if so invited?

Ms. CANTERBURY. Absolutely.

Chairman ISSA. Thank you.

We stand adjourned.

[Whereupon, at 11:23 a.m., the committee was adjourned.]

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