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ENSURING TRANSPARENCY THROUGH THE 

FREEDOM OF INFORMATION ACT (FOIA) 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JUNE 2, 2015 

Serial No. 114–80 

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 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

SEAN MCLAUGHLIN, Staff Director 

DAVID RAPALLO, Minority Staff Director 

KATY ROTHER, Counsel 

SHARON CASEY, Deputy Chief Clerk 


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C O N T E N T S 

Page 

Hearing held on June 2, 2015 ................................................................................. 1 

WITNESSES 

Ms. Sharyl Attkisson, Investigative Reporter 

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

Written Statement ............................................................................................ 8 

Mr. Jason Leopold, Investigative Reporter, Vice News 

Oral Statement ................................................................................................. 10 

Written Statement ............................................................................................ 12 

Mr. David E. McCraw, Vice President and Assistant General Counsel, The 

New York Times 

Oral Statement ................................................................................................. 16 

Written Statement ............................................................................................ 18 

Ms. Leah Goodman, Investigative Reporter, Newsweek 

Oral Statement ................................................................................................. 20 

Written Statement ............................................................................................ 23 

Mr. Terry Anderson, Adjunct Professor, University of Florida 

Oral Statement ................................................................................................. 27 

Written Statement ............................................................................................ 30 

Mr. Tom Fitton, President, Judicial Watch 

Oral Statement ................................................................................................. 66 

Written Statement ............................................................................................ 69 

Ms. Cleta Mitchell, Partner, Foley & Lardner LLP 

Oral Statement ................................................................................................. 75 

Written Statement ............................................................................................ 77 

Mr. Nate Jones, Director of the Freedom of Information Act Project, National 

Security Archive 

Oral Statement ................................................................................................. 109 

Written Statement ............................................................................................ 111 

Ms. Lisette Garcia, FOIA Resource Center 

Oral Statement ................................................................................................. 121 

Written Statement ............................................................................................ 123 

Mr. Gabriel Rottman, Legislative Counsel/Policy Advisor, American Civil Liberties Union 

Oral Statement ................................................................................................. 131 

Written Statement ............................................................................................ 133 

Ms. Anne Weismann, Executive Director, Campaign for Accountability 

Oral Statement ................................................................................................. 143 

Written Statement ............................................................................................ 145 

APPENDIX 

Chaffetz Statement .................................................................................................. 168 

2009–01–21 Presidential Documents White House Memo FOIA ........................ 172 

2009–04–15 Craig-White House Memo re: Doc Requests ..................................... 174 

1988–09–01 Markman DOJ MEMO re WH Records in Agency Files ................. 175 


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ENSURING TRANSPARENCY THROUGH THE 

FREEDOM OF INFORMATION ACT 

Tuesday, June 2, 2015 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 2:10 p.m., in Room 2154, 

Rayburn House Office Building, Hon. Jason Chaffetz [chairman of 

the committee] presiding. 

Present: Representatives Chaffetz, Duncan, Jordan, Walberg, 

Amash, Gosar, Gowdy, Lummis, Meadows, DeSantis, Mulvaney, 

Blum, Hice, Russell, Carter, Grothman, Hurd, Palmer, Cummings, 

Norton, Clay, Lynch, Connolly, Duckworth, Lawrence, Lieu, Watson Coleman, Plaskett, DeSaulnier, Welch, and Lujan Grisham. 

Chairman CHAFFETZ. The Committee on Oversight and Government Reform will come to order. 

And, without objection, the chair is authorized to declare a recess 

at any time. 

I appreciate you all being here for our hearing, ‘‘Ensuring Transparency Through the Freedom of Information Act.’’ We have just 

completed votes on the floor, and I am sure we will have some 

members as they hustle back here to the hearing, but I wanted to 

get started. 

We have a very distinguished couple of panels. We appreciate 

those that are participating and sharing their perspectives with us. 

I would remind the committee that we are not only the Oversight 

Committee but we are also Oversight and Government Reform. The 

goal of these hearings is to come to a place where we can actually 

reform this process so that it works, no matter who is in the White 

House, no matter what administration is there, that we get this 

part of the equation right. 

My passion for this comes from the idea that government should 

be open and transparent. It is what separates the United States of 

America from everybody else. We are self-critical. We do take 

things and look back, and sometimes those things are a little bit 

embarrassing. But because it might be a little bit embarrassing is 

not enough to withhold information from the public and the 

public’s right to know. It is the heart of what we do as a committee, it is what we are supposed to be doing as the United States 

Congress, and it is what we are supposed to be doing as a country. 

And nothing makes government more accountable than making 

its actions open and transparent to those that are paying the bills. 

The Freedom of Information Act, otherwise known as FOIA, gives 

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tions—what it did well, what it didn’t do well, what it should have 

done, what it shouldn’t have done. And, clearly, in retrospect, looking back with 20/20 vision, you can go back with great clarity, but 

that is why it is important to do this and understand. 

A request for FOIA must simply be in writing and reasonably describe the records being requested. That is it. That is the way, at 

least, it should be. But navigating the FOIA process is complicated 

and varies across government agencies. Something like 550,000 

times in just the time since I have served in Congress, which is the 

same time that President Obama took office, 550,000 times FOIAs 

were rejected because there was some sort of exemption that took 

place. 

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

standards which may or may not be updated to reflect the current 

law. One of the great frustrations is, agency by agency, there seem 

to be different standards and different practices. And when we get 

to the hearing tomorrow, that is one of the things we want to explore with our witnesses. 

What one agency deems to be a reasonable description of documents requested may not be adequate for another agency. For example, the State Department rejected a request because it didn’t 

include the contract number, when the FCC, for instance, doesn’t 

require that information at all. 

Congress must ensure that, when it comes to FOIA, agencies are 

following the law. The FOIA statute requires agencies to give a 

preliminary response within 20 business days of the request. In 

practice, agencies take the 20-day time limit merely as a suggestion rather than a rule, and most of it is just laughed off and 

doesn’t even come close to meeting the 20-day rule as prescribed 

by law. 

Some agencies don’t even bother to go through the process of responding at all within the 20 days. Syracuse University recently 

learned this the hard way when only 7 of 21 agencies provided a 

satisfactory response to the exact same request for records kept by 

every FOIA office. The inconsistency is amazing. Three agencies 

didn’t even bother to respond at all. The unresponsive agencies 

were the Bureau of Alcohol, Tobacco, and Firearms; the Department of Justice Executive Office of the United States Attorneys; 

and the Department of Justice National Security Division. 

The FOIA law requires documents to be released unless those 

documents fall into the exemptions outlined in the statute, and exemptions are far narrower than most agencies claim. The committee reviewed redacted and unredacted versions of documents 

from the FCC and found numerous redacted emails with no statutory justification, in our opinion. Of note, the FCC redacted the 

chairman’s initials from all documents under a privacy exemption, 

while failing to redact email addresses and other contact information for third parties—inconsistent, to say the least. 

We also found some agencies redacted basic information already 

available to the public. Redacting information that can easily be 

found on an agency’s Web site does not suggest a government interested in ensuring transparency. For example, in 2011, Immigration 

and Customs Enforcement at the Department of Homeland Security provided the National Security Archive with 111 pages of docuVerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL

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ments already available to the public, including news clippings, 

media alerts, even congressional testimony. Yet, in those public 

documents, ICE chose to redact the information like the name of 

the board agent that sang the national anthem at the conference. 

These types of redactions not only have no legal basis but they 

defy common sense, and they make it more timely, more expensive 

to go through the process of redacting the person who sang the national anthem than just allowing the American people to know who 

that person was. 

So requesters who actually receive a response must literally read 

between the blacked-out lines. And every time we see such questionable redactions, we have to wonder: If they are hiding this, 

what else are they hiding? 

Congress intended for FOIA to increase accountability by giving 

taxpayers a view into the inner workings of their government. And 

it is not just taxpayers; it is the media, as well. That no longer appears to be the case. 

We have two full panels of witnesses here today with extensive 

professional experience with the Freedom of Information Act, and 

all have at one time or another struggled with the FOIA process. 

I look forward to hearing from all of our witnesses about their experiences with FOIA and entertain suggestions that they might 

have to ensure disclosure of information is timely, it is accurate, it 

is routine, and something that is more common practice than it is 

here today. 

So we appreciate all the witnesses and look forward to a good, 

robust hearing. We have three panels—two today, one tomorrow. 

And, with that, I would now like to recognize the distinguished 

ranking member, Mr. Cummings of Maryland, for his opening 

statement. 

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

today’s hearing as well as our hearing tomorrow on the Freedom 

of Information Act. 

FOIA is the cornerstone of our open-government laws, and it has 

been used by countless journalists, watchdog groups, and citizens 

to obtain information about their government and its actions. FOIA 

helped the families of 9/11 victims trace the actions and whereabouts of their loved ones. FOIA led to the discovery in 2002 that 

one in five FDA scientists felt pressured to approve unsafe drugs. 

And following the shooting of Michael Brown in Ferguson, Mississippi, FOIA helped highlight the transfer of military equipment 

to police departments. 

We will hear today from witnesses who use FOIA and know firsthand how important it can be. 

I appreciate each of you taking the time to share your experiences with us, and I look forward to your testimony. 

Today I would like to make one simple but critical point: Congress cannot continue to slash agency budgets, starve them of resources, cut their staffs, and all the while expecting them to tackle 

the increasing number of FOIA requests that are now at an alltime historic high. 

Let me give you some specifics. 

First, the number of FOIA requests has skyrocketed from 2009 

to 2014. In 2009, when President Obama took office, there were 


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about 558,000 FOIA requests submitted to Federal agencies. By 

2014, that number rose dramatically to more than 714,000. From 

2009 to 2014, the overall number of FOIA requests submitted to 

Federal agencies increased by 28 percent, with new records set in 

each of the past 4 years in a row. 

The problem is that the total number of FOIA personnel has now 

dropped to its lowest point at any time since President Obama took 

office. In 2009, the number of full-time FOIA staff at Federal agencies was 4,000. In 2014, the number of full-time FOIA staff dropped 

to 3,838, a decrease of about 4 percent. Is there any wonder why 

we have FOIA backlogs? 

The number of requests has been skyrocketing, but agency budgets have been slashed by draconian sequestration cuts, resulting in 

fewer staff to handle impossible workloads. These trends are simply not sustainable if we truly want a FOIA system that works for 

the American people. 

With that said, I know there is one thing that every member of 

this committee agrees on, and that is the need for legislation to update and improve FOIA. On February 2, Representative Darrell 

Issa, our former chairman, and I joined together on a bipartisan 

basis, introduced a FOIA Oversight and Implementation Act, and 

we passed it out of our committee unanimously several months ago. 

This legislation would codify the presumption of openness that 

President Obama put in place by the executive order on his first 

day in office. The bill would also codify Attorney General Holder’s 

directive that the Department of Justice will not defend FOIA denials unless agencies reasonably foresee that disclosures would harm 

an interest protected by a FOIA exemption or if disclosure is prohibited by law. 

The bill would also make other improvements. It would put a 25- 

year sunset on Exemption 5 of FOIA, the deliberative process exemption, and limit the scope of records that agencies could withhold under the exemption. It would require the Office of Management and Budget to create a central portal to allow FOIA requests 

to any agency through one Web site. And it would strengthen the 

independence of the Office of Government Information Services by 

allowing it to submit testimony and reports directly to Congress. 

Our bill has widespread support. A collection of 47 open-government groups supports the bill. Yet, still, it has not been scheduled 

for a floor House vote. I believe the House should pass the bill 

quickly so that we can work with the Senate to get it to the President’s desk. 

With that, let me close by reading from an editorial that was 

published in the New York Times on February 18 which said this, 

‘‘For Republicans, this is a rare chance to log a significant bipartisan accomplishment in the public interest, one that Mitch McConnell, the Senate majority leader, and Mr. Boehner should probably 

seize. The availability of information that sheds light on the workings of government is essential for a healthy democracy. Strengthening the law will help ensure the basic principles of transparency 

are not a matter of executive discretion.’’ 

Mr. Chairman, I hope that we can seize this opportunity, and I 

hope that—again, I want to thank you for calling this hearing. 

And, with that, I yield back. 


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Chairman CHAFFETZ. I thank the gentleman. 

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

who would like to submit a written statement. 

Chairman CHAFFETZ. We will now recognize our first panel of 

members. 

Sharyl Attkisson is an award-winning investigative journalist. 

During her 30-year career, she has been a correspondent or anchor 

at CBS News, PBS, CNN, and in local news. Her investigations 

have covered a wide range of topics, from green energy, to earthquake aid in Haiti, to lobbying in Washington, D.C. She has won 

five Emmy Awards for her investigative work, and in 2012 she 

earned both the Emmy Award and the Edward R. Murrow Award 

for Excellence in Investigative Reporting for her work on Operation 

Fast and Furious. In addition to her Emmy Award wins, Ms. 

Attkisson has been nominated a further seven times. 

Jason Leopold is an investigative reporter with VICE News. During his 20 years as a reporter, he logged stints at the Los Angeles 

Times, Dow Jones Newswire, and other prominent organizations. 

His work has included extensive reporting on national security 

issues, civil liberties, Guantanamo Bay, as well as Enron. In 2013, 

he was awarded a crowd-funding grant by the Freedom of Press 

Foundation to continue his Freedom of Information Act work and 

coverage of Guantanamo Bay. We are pleased to have him here. 

David McCraw currently serves as vice president and assistant 

general counsel for The New York Times Company. With 13 years 

at the Times, he is responsible for the company’s litigation matters 

and providing counsel to the company on freedom of information 

and access to the courts. He has previously served as the deputy 

general counsel for the New York Daily News. As lead litigation attorney for FOIA lawsuits brought by the Times, Mr. McCraw has 

been involved in the suits seeking documents on issues including 

unsafe workplaces, Department of Justice justifications for drones 

strikes, and the names of companies permitted to trade with sanctioned nations. 

Leah Goodman is an investigative reporter at Newsweek. She 

has written for Bloomberg, Forbes, the Financial Times, Barron’s, 

The Wall Street Journal, and CNN Fortune. Additionally, she has 

been a fellow at the Center for Environmental Journalism at the 

University of Colorado at Boulder. For Newsweek, Ms. Goodman 

writes about money, politics, and institutional cultures of corruption. We are pleased that she is here, as well. 

We are also honored to have Mr. Terry Anderson, who is a retired journalist and former foreign correspondent in Asia, Africa, as 

well as the Middle East. He served as the chief Middle East correspondent for the Associated Press and is a former Marine and 

Vietnam veteran. 

We thank you, sir, for your service—especially for the time in 

1985, while working for the Associated Press, Mr. Anderson was 

abducted in Beirut and held captive for nearly 7 years, an experience he recounted in his best-selling book, ‘‘Den of Lions.’’ He is the 

honorary chairman of the Committee to Protect Journalists and 

has spent more than 10 years as a journalism professor at Syracuse University. 

We welcome you all. 


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Pursuant to committee rules, all witnesses are to be sworn before 

they testify. If you would please rise and raise your right hands, 

we would appreciate it. 

Do you solemnly swear or affirm that the testimony you are 

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

the truth? 

Thank you. 

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

And, at this time, we are going to recognize—we will start with 

Ms. Attkisson. 

We would appreciate you limiting your testimony to 5 minutes, 

but we are pretty liberal with that. As long as you go over but don’t 

go over too much, we will use some discretion here. But we want 

to leave time for some questions; we also have a second panel after 

this. But we would love to get your candid perspective, and I know 

that is hard to wrap up in 5 minutes, but let’s give it a try. 

And we will start with Ms. Attkisson. You are now recognized. 

Thank you. 

STATEMENT OF SHARYL ATTKISSON 

Ms. ATTKISSON. Plenty of time for a journalist that sometimes 

had to do stories in 2 minutes on the news frequently. 

Good afternoon. 

The Freedom of Information Act, or FOIA, should be one of the 

most powerful tools of the public and the press in a free and open 

society. Instead, it’s largely a pointless, useless shadow of its intended self. Federal bureaucrats paid tax dollars to act on our behalf routinely break the law with impunity as if—treating public 

material as if it’s confidential, secret information to be controlled 

by a chosen few. They withhold it from the public, its rightful owners, while sharing it with select partners such as corporations or 

other so-called stakeholders. 

In 2013, the Defense Department finally responded to a FOIA request I’d made in 2003—too late to be of use for the news story I 

was working on back then, 10 years before. For some perspective, 

my daughter was 8 years old when I made the FOIA request. By 

the time I got a response from the Pentagon, she was going off to 

college. 

Last October, I filed a FOIA request when CDC was not forthcoming about the epidemic of Enterovirus EV–D68, possibly linked 

to the deaths of 14 children in the U.S. and the paralysis of 115 

children. In December, long past the supposed 20-day response 

time allowed under FOIA, I asked CDC about the status. CDC answered, incredibly, that they were just far too busy with the Ebola 

crisis to process my FOIA. But even now, with the Ebola crisis excuse gone, CDC still hasn’t provided a single page of enterovirus 

information 8 months after I asked. 

Filing a lawsuit to force the government to comply with FOIA 

law takes too much time and money, and the agencies still play the 

delay game. In court, the Justice Department, itself one of the 

worst FOIA offenders, spends our tax dollars defending violators in 

their effort to keep public documents secret. In one lawsuit I filed, 

the FBI spent months repeatedly claiming that it didn’t have inforVerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL

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mation that it had previously acknowledged in writing that it did 

have. 

I also filed a lawsuit for healthcare.gov material in 2012. Apparently, the government didn’t even bother to start looking for it 

until I filed a lawsuit. Only now in 2015 are they beginning to do 

so. The documents provided so far are redacted beyond reason. 

In 2014, when the State Department finally sent some emails responsive to a 2012 request I’d made, just about everything was redacted except the address line. 

It should come as no surprise that the Federal agencies often 

treat Congress with the same disdain and lack of transparency. 

They guard and redact information Congress requests as if Congress is a foreign enemy rather than representatives of the rightful 

owners of information. When pressed to provide material to Congress, Federal officials often exert dictatorial control, creating strict 

terms and rules such as only allowing review of the material during certain times in very special rooms all under the watchful eye 

of Federal agency minders. This is not transparency. 

The FOIA process is improperly politicized. Federal agency press 

flaks and politicians intervene to withhold potentially embarrassing information. FOIA law does not permit this political intervention, but it happens all the time. 

Federal agencies increasingly employ new tactics to obfuscate 

and delay. They say they don’t understand a FOIA request. They 

claim it’s too broad. They say a search would be unreasonable. 

When they do provide a sensitive document, they redact nearly everything, using exemptions such as (b)(5) deliberative process, 

which has become so ridiculously overused it has earned the nickname the ‘‘withhold it because you want to’’ exemption. 

These are some recent documents I received from Department of 

Health and Human Services with some (b)(5) exemptions on there. 

Federal agencies claim they lack funding and staff. With all due 

respect, Congressman Cummings, you’re probably very correct in 

much of that, but I have also seen that they create some of their 

own backlog by unnecessarily requiring even the simplest request 

to go through the onerous FOIA process when it’s not necessary. 

And when a court finds a Federal agency violated FOIA law, penalties are almost never imposed. And if ordered to repay the plaintiff’s legal fees, the government does so with your tax dollars, 

meaning there is no deterrent to stop the bad behavior. In other 

words, they are using our money to prevent us from seeing our own 

documents. 

In short, FOIA law was intended to facilitate the timely release 

of public information, but instead Federal officials have perverted 

it and now use it to obfuscate, obstruct, and delay. The system is 

not broken by accident; it’s by design. In my view, the only thing 

that can make FOIA work as designed would be meaningful criminal penalties for violators. 

Thank you. 

[Prepared statement of Ms. Attkisson follows:] 


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Chairman CHAFFETZ. Thank you. 

Mr. Leopold, you are now recognized. 

STATEMENT OF JASON LEOPOLD 

Mr. LEOPOLD. Chairman Chaffetz, Ranking Member Cummings, 

and members of the committee, thank you for inviting me to testify 

today about the Freedom of Information Act. 

My name is Jason Leopold, and I’m an investigative reporter at 

VICE News. I aggressively use the Freedom of Information Act in 

order to find out what is taking place behind the scenes within the 

Federal Government. I write long-form investigative news reports, 

many of which showcase the documents I have obtained through 

FOIA. And I also maintain a FOIA blog at VICE News called ‘‘Primary Sources.’’ 

My FOIA work has been cited by the Second Circuit Court of Appeals and contributed to the panel’s decision last year to order the 

Obama administration’s release to The New York Times and the 

ACLU the Justice Department’s ‘‘targeted killing’’ memorandum. 

Documents I have received through FOIA over the past year include a Justice Department white paper that explains the legal justification granted to the CIA to kill a U.S. citizen suspected of 

being a member of Al Qaeda; an invoice showing that Guantanamo 

officials spent $300,000 on force-feeding formula while denying the 

existence of a mass hunger strike at the detention facility; and 

emails showing the White House’s interference with the FCC over 

net neutrality. 

Information obtained through FOIA is critical to our democracy 

because it helps citizens learn what their government is up to. Unfortunately, delays in obtaining responsive records remain a significant problem for requesters. I have submitted thousands of FOIA 

requests to dozens of different agencies, and, in my experience, 

fewer than 1 percent of my requests have been decided within the 

timeframe required by FOIA. I routinely experience delays of several years in response to my FOIA requests. For example, the Office of Legal Counsel recently informed me that it would likely not 

complete the processing of my FOIA request for emails until December 31, 2016, due in part to the agency’s backlog. 

FOIA requests are sometimes delayed and politicized at the Pentagon because the agency has a policy that calls for certain FOIA 

requests that may generate media attention to first undergo an internal review and receive department-level clearance before a response is issued and/or records are released. 

My FOIA attorney, Ryan James, successfully fought back the 

State Department’s attempts to delay the release of Hillary Clinton’s emails until next year by securing an agreement that will see 

monthly releases of those documents, and that took place last 

week. 

But the delayed responses to FOIA requests are a significant 

problem for investigative journalists. Information becomes less 

newsworthy with the passage of time, and it leads to a perception 

that FOIA is not a useful tool. 

FOIA does provide for expedited processing in certain circumstances, but I have found that agencies take a narrow view of 


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what circumstances merit expedition. Even when expedited processing is granted, the process still moves slowly. 

For example, I submitted a FOIA request to the Department of 

Justice on September 5, 2014, for records relating to the Department’s investigation of allegations that the CIA had accessed Senate Intelligence Committee staffers’ computers without authorization. When I did not receive a prompt response, I immediately filed 

a lawsuit. Expedited processing was eventually granted, but the 

agency sought and obtained approval from the court to delay the 

release of any records until January 29, 2016. 

It is often the case that the filing of a lawsuit against an agency 

catalyzes the release of documents, and I am fortunate to have a 

prominent FOIA attorney, Jeffrey Light, representing me and 

VICE News in more than a dozen lawsuits currently against various government agencies. But let me give you a specific example 

of how the FBI maintains a deliberate policy of violating FOIA 

until a lawsuit is filed. 

Under Exemption 7(A), an agency may withhold records or information compiled for law enforcement purposes which could reasonably be expected to interfere with enforcement proceedings. Congress deliberately chose the words ‘‘records or information’’ when it 

amended Exemption 7 in 1974. The FBI’s standard practice, however, is to categorically apply this exemption for all investigative 

files rather than determining which records or information would 

interfere with law enforcement proceedings. This is a clear violation of FOIA. Doubtlessly aware of this fact, the FBI has never defended its position in court. Instead, when a lawsuit is filed, the 

FBI conducts a new review, applying the proper standards. 

A Federal judge recently stated that, ‘‘Because the court has 

doubts about whether the FBI conducted the required review at the 

administrative stage in this case, it will remind the Bureau of its 

obligation to perform such reviews in the future.’’ Despite this reminder from the court, the FBI has continued to deny my requests 

because the records requested are located in an investigative file. 

Congress and the courts could not have been clearer. It is a violation of FOIA for the FBI to interpret Exemption 7(A) the way it 

has. Yet the FBI continues to be in routine and flagrant violation 

of the law. I have many more examples to share with this committee. 

In sum, FOIA can be a valuable tool for investigative journalists 

but only when it functions effectively. 

Thank you for your time and attention to this important matter, 

and I look forward to answering your questions. 

[Prepared statement of Mr. Leopold follows:] 


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Chairman CHAFFETZ. Thank you. 

Mr. McCraw, you are now recognized for 5 minutes. 

STATEMENT OF DAVID E. MCCRAW 

Mr. MCCRAW. Thank you, Mr. Chairman, and thank you, Ranking Member—— 

Chairman CHAFFETZ. Make sure that microphone is—there you 

go. 

Mr. MCCRAW. Thank you, Mr. Chairman, and thank you, Ranking Member Cummings and members of the committee. I appreciate the opportunity to testify about the Freedom of Information 

Act. 

As an assistant general counsel at The New York Times, I provide legal counsel to the newsroom. I’m very familiar with the 

problem that delay presents for our journalists as they seek information. 

Last year, I filed eight FOIA lawsuits on behalf of the Times. 

Much of that litigation was driven not by actual disagreement 

about legal issues but in response to unacceptable delay by agencies. In other words, we find ourselves compelled to litigate simply 

to prompt agencies to act upon request. 

Let me provide one recent example that shows how wasteful and 

inefficient all of that is and why reform is needed. 

Late last year, the Times made a simple FOIA request to the Department of Justice. We wanted to know how much money the DOJ 

had spent paying the legal bills of FOIA requesters in the Southern 

District of New York. FOIA permits the courts to award attorneys’ 

fees in FOIA cases where the requester wins. We simply wanted 

to know in a single judicial district how often that happened and 

in what amounts. 

It was a straightforward request about a budgetary matter. No 

FOIA exemption could possibly apply. But weeks passed without a 

response. Over a 4-month period, we repeatedly contacted the 

FOIA officer handling the request. We called that office more than 

10 times and left messages. Almost all of those cases went 

unreturned. Finally, we filed a lawsuit out of frustration. 

At that point, the U.S. Attorney’s Office was required to become 

involved. An assistant U.S. attorney took on the task of finding out 

what was going on in the FOIA office, had our request moved 

quickly along with court deadlines looming, and succeeded in getting the documents released to us. 

In short, an assistant U.S. attorney ended up doing what the 

FOIA officer should have done in the first place. Forcing requesters 

to litigate to get a response is a waste of government resources. 

But more than that, a citizen’s right to get information released in 

a timely fashion should not turn on whether the citizen is fortunate 

enough to have the resources and know-how to sue. 

There is much that needs to be done to fix FOIA, and I urge the 

House to move forward with the reform bill which takes important 

steps towards empowering OGIS, limiting Exemption 5, and encouraging the use of technology. 

But I want to focus today on something very basic: What can be 

done to get agencies to respond in the timeframes dictated by law? 


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Congress, in enacting FOIA, set a response deadline of 20 business days. While statistics show the response times have improved, 

we know from actual experience that responses from many agencies takes months or years. In the documents we submitted with 

my testimony, we include a letter from an agency that has sat on 

a request for nearly 4 years and now wants to know whether we’re 

still interested. 

Our written submissions document some specific issues relating 

to today. Let me just briefly highlight three. 

First, much of the delay appears to have little to do with the nature and complexity of actual requests but instead results from a 

culture of unresponsiveness. Some agencies are consistently good, 

while others show little sign of improvement year after year. 

As requesters, we are not in a position to know what the root 

causes of delay are—whether a lack of resources, poor work performance, inadequate training, or something else—but we do know 

two things: First, Congress, after weighing all the competing considerations, set specific deadlines in the law; second, the leaders of 

many agencies are permitting those deadlines to be ignored by 

staff. 

In the end, this is a management issue, and those in charge of 

agencies should be held accountable for figuring out what the problem is and fixing it. 

Second, delay frequently occurs because agencies decide to refer 

a request to another agency. This happens when the second agency 

is a stakeholder in the information sought. Referral may make 

sense as a policy matter, but few rules govern the process. The referring agency lacks authority to demand a response from the second agency or set a deadline, and the requesters are left on the 

sidelines. Much clearer rules and deadlines are needed. 

Third, FOIA requests often seek information that has been submitted by companies to regulatory agencies. Disclosure of this information is vital to citizens so they can monitor whether regulators are doing their jobs and see whether companies are being 

treated fairly. But in response to such FOIA requests, agencies frequently take the position they need to consult with the submitters. 

This process becomes a source of endless delay. 

In the documents we provided to the committee, we include an 

agency response letter saying it would take 15 years to finish the 

consultation and respond to our request. Not surprisingly, when we 

sued, a Federal judge found that was simply not the case and ordered the release of the information. 

In conclusion, there are a host of reforms we’re pursuing as we 

see in the House bill, but taking steps to ensure that agencies respond in the time period that Congress saw fit to establish should 

be an essential part of any reform. 

Thank you for inviting me to testify and for taking on this important issue. 

[Prepared statement of Mr. McCraw follows:] 


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Chairman CHAFFETZ. Thank you. I appreciate that. 

Ms. Goodman, you are now recognized for 5 minutes. 

STATEMENT OF LEAH GOODMAN 

Ms. GOODMAN. I just want to thank you, Chairman, and thank 

Ranking Member Cummings and the rest of the members of the 

committee. 

I’m really glad to be here today with so many journalists who I 

very much respect. And the fact that we’ve come here at all represents a stark departure from our usual routine as journalists. 

While we may frequently be found writing about hearings such as 

this, as a rule, we try not to participate in them. 

Our mandate to remain objective as journalists demands that we 

stay well above the political fray and cover stories from all angles, 

notwithstanding whatever our privately held opinions may be. The 

urgent problem that we face, though, right now is that our role of 

objectively collecting and reporting the facts has been increasingly 

and aggressively blocked by those who would seek to separate the 

journalists, as well as members of the public, from the information 

that we are lawfully entitled to. 

In my job as a senior writer and finance editor at Newsweek, I 

have been surprised by the number of government agencies that 

will stonewall even the most basic requests for information that 

readers and the public have a right to. 

There are no Washington editors here today from any of the big 

newspapers, and the reason why—because I spoke with them—is 

that they are concerned about a chilling effect for even speaking 

out on this. They are concerned about the consequences of coming 

here. This, I think, speaks to the seriousness of this matter. 

Collectively, the journalists who are here have covered major 

events in this country for decades and have dealt with plenty of 

blow-back, but we have never before seen so many agencies that 

have turned themselves into veritable black boxes where information comes in and does not come out. What we’re now witnessing 

in terms of obstructionism and obfuscation is truly unprecedented 

in our careers. The issues surrounding the Freedom of Information 

Act, in my opinion, are symptomatic of a much wider problem. 

Our job, which is to inform the public about issues crucial to our 

democracy and to the national discourse, relies on our ability to 

gather and check facts in a timely fashion. It should be understood 

that the job of journalists is to have no agenda other than to get 

answers to important questions for our readers. And we aren’t just 

answerable to them; we are members of the public. 

Last I checked, our government works for the public and is paid 

for by the U.S. taxpayer. You’d think that our public service mission as journalists and the government would have somewhat symbiotic relationships, but, as we know, we don’t. The fact we’re even 

here speaking to the Members of the House is proof that our widely 

held notion of a government accountable to its people is broken. 

While my colleagues are much more accustomed to problems relevant to the Freedom of Information Act than I am, I am here to 

offer broader context about what we face every day as we try to do 

our job. 


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To be completely honest, I come from a generation of journalists 

who were told upon entering the newsroom: If you want to know 

what you’re going to be writing about in 3 years, file a FOIA. So 

if I want to write about something less than 3 years, I don’t file 

a FOIA. 

The long waiting games, heavy redactions and lack of accountability, and the culture of concealment that seems to pervade the 

FOIA process also carries over into all aspects of what we do, especially when we’re dealing with government agencies. 

Once upon a time, you could call a government agency and talk 

to someone with a real first and last name. You could get their contact information without fighting through people for it. You could 

tell them what you were writing about and set up an interview 

with someone knowledgeable at the agency who could talk to you. 

Sometimes they would have no comment, which is fair enough, but 

everyone knew who they were dealing with and the process was as 

honest as one could expect it to be. In other words, there was a 

modicum of responsiveness and accountability. 

These days, when I call a Federal agency, what I’m dealing with 

can only be compared with an offshore call center with a constantly 

rotating cast of characters answering the phones, who are trained 

to not give their names, who can tell you nothing about who is 

knowledgeable on the topic about which you’re writing, and who 

urge you to email a generic ‘‘info@government.gov’’ sort of address, 

which has no name on it and, as all journalists know, is the kiss 

of death. 

I don’t think this is the fault of the staffers. In my opinion, most 

of the staff at these agencies are not being empowered by their superiors to have even rudimentary exchanges with journalists. 

The next time you read a news article that involves a government agency, count how many times an actual person with a name 

has an actual quote from that agency that does not come from an 

already published comment or congressional testimony or a press 

release or a press conference. You’ll see that quotes from these 

sources with full names from agencies are rarer than hen’s teeth. 

This is because, the environment we’re operating in, journalists 

will not be able to talk to anyone unless we agree to not name 

them or they will ask to remain anonymous while contributing to 

our stories. In these cases, the agency or staff member will comment only on condition that they are not identified, effectively attempting to make it impossible for readers to know who’s feeding 

them this information. And we, the journalists, are expected to be 

enablers and stewards of this cowardly process I find to be the opposite of what journalism is for. 

One example: While investigating high-frequency trading last 

year and whether it was disrupting our markets, as finance editor 

for Newsweek, the U.S. Securities and Exchange Commission repeatedly told me that I could not quote its market experts, even 

after arranging interviews with them and conducting extensive 

conversations with them and agreeing to allow them to check their 

own quotes. 

This government agency is tasked with overseeing the Nation’s 

stock markets, and yet it also informed me that, while I could use 

the information it gave me, I could not say where I had gotten it 


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in my story. In other words, I was to hide the fact that I had gotten 

this information from the SEC and expected to present it to the 

public as incontrovertible fact. 

Ethically, journalists can’t agree to such terms unless under rare 

circumstances, usually ones entailing security or protection of an 

individual, not large government agencies. But these agencies want 

this kind of special treatment every day, and that is as a starting 

negotiation condition. 

In the case of the SEC story, I didn’t agree to the terms, and, 

as a result, an SEC staffer asked to speak with my editor immediately. The message was clear that if I did not do as I was told 

the situation would be escalated in a way that might be problematic for me. My editor was not amused, and, days after we went 

to print with this story, the SEC announced an investigation into 

high-frequency trading disrupting U.S. markets. 

In the past year alone, I’ve worked with around two dozen government agencies that have wanted to dictate to me how to write 

my stories, what I can say and cannot say. And they seem to think 

this is entirely reasonable when, in fact, it is quite extraordinary. 

If I don’t agree to the terms, the result will be waiting days, weeks, 

or getting no answers at all to questions. 

While one might chalk this up to a basic lack of media training 

among these agencies, it is curiously lacking in exactly the same 

way, with the same tendency towards zero-accountability anonymousness. And it’s getting worse. 

These issues are not just ones of gamesmanship in the form of 

delays and denials of critical information but a desire on the part 

of our agencies to remain in the shadows while anonymously influencing the news received by the voting public. It is my hope that 

by appearing today the House might consider taking steps to place 

such standards that would restore accountability. 

To directly address what can be done requiring—regarding FOIA 

and the broader problems that I speak of, Congress should consider 

legislating an enforceable set of core standards by which Americas 

can seek and receive information in a timely fashion from identifiable sources within the government in response to their questions 

rather than the cloak-and-dagger games that we now see. Until 

such standards are imposed and enforced with real consequences, 

I think these games will continue. 

And, lastly, if you’re wondering if I expect there to be consequences for my being here and saying this today, yes, I do. But 

I believe if we don’t stand up and speak in one voice as journalists 

that our jobs will only get harder. 

Thank you for your time, and, again, thank you for having me 

here. 

[prepared statement of Ms. Goodman follows:] 


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Chairman CHAFFETZ. Thank you, Ms. Goodman. 

Mr. Anderson, you are now recognized for 5 minutes. 

STATEMENT OF TERRY ANDERSON 

Mr. ANDERSON. Thank you, Mr. Chairman and members of the 

committee, for allowing me to come and speak here today. 

I agree with the chairman and with my colleagues that government transparency and its obverse, government secrecy, are among 

the most important problems that we face today, both this body 

and our country. 

The guarantee of freedom of speech and of the press and all the 

other freedoms that we have enjoyed for 240 years means little 

without freedom of information. If we do not know what our leaders are doing in our name, how are we going to hold them responsible, accountable? How can we know which leaders to choose? How 

can we claim to have a government of the people, by the people, 

and for the people? 

Yes, there are certain things we should not know too much 

about—the movements and strategy of our Armed Forces in wartime, for instance—but such cases arise seldom. So why is our government and its agencies currently protecting millions of individual 

documents, hundreds of thousands of actions and decisions made 

by our elected and appointed officers, at the cost of somewhere upwards of $11 billion a year and increasing drastically? 

Yes, I know the world is a dangerous place. I know that 2,700 

people were murdered at the World Trade Center on September 11, 

2001, and hundreds more in attacks on embassies and individual 

Americans around the world since. But I also know through experience and through research that the vast majority of those millions 

of secrets have nothing to do with terrorism or our national security. Instead, they often involve automatic decisions by the horde 

of bureaucrats who have the authority to stamp ‘‘Top Secret’’ on 

the flow of papers that cross their desk or, just as often, some 

minor functionary trying to protect himself or herself from political 

or personal embarrassment. 

How do I know this? Well, when I came home from Lebanon, I 

was given a generous fellowship at Columbia University by the 

Freedom Forum so my wife and I could write a book about our experience. We decided to ask under the Freedom of Information Act 

for any information on my kidnappers that might be held by the 

various intelligence agencies—the CIA, the FBI, the NSA. In all, 

we requested responses from 13 government agencies. 

As you know, FOIA sets time limits and parameters for official 

responses to that kind of request as well as procedures for appeal, 

ultimately to a court of law. After 2–1/2 years of messing about 

with denials and denials of appeals and outright failures to respond, I finally took advantage of that last provision and filed suit 

in U.S. District Court in Washington. 

Included in the legal submission was the initial response from 

the DEA, which was made long after its FOIA deadline had expired 

but informed me that they could not furnish the information I requested because it would violate the privacy rights of the individuals concerned; however, if I was able to get a signed, notarized release from my former host, they would be happy to cooperate. I was 


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not greatly interested at the time in finding my kidnappers again 

and asking them for permission to peruse their files. 

Eventually, I began getting actual documents. Most were heavily 

redacted, including one that had only the title left, with about a 

dozen pages following it completely blacked out. And so we fought 

on for 4 years, at the end of which, in accordance with repeated judicial orders, I had dozens of boxes of files to look through to try 

to understand the events that had engulfed me and my family. 

I read them all carefully. They included copies of my own stories 

for the AP, which had already of course appeared in thousands of 

newspapers, copies of publicly available reports stamped ‘‘Confidential,’’ and masses of irrelevant paper or discussions of diplomatic 

faux pas or less than diplomatic comments someone had made 

about foreign leaders, and so on. 

So the government spent millions of dollars and 4 years of effort 

trying to protect secrets, not one of which concerned actual security 

interests of the United States. 

During this period, the late Senator Daniel Moynihan conducted, 

at the President’s request, a 2-year study of government secrecy. 

You may remember it. He concluded in his 1995 report that the 

U.S. had fallen into a culture of secrecy which had become dangerous to our democracy. 

Senator Moynihan, a great statesman, a brilliant mind, and a 

personal friend, said this: ‘‘Excessive secrecy has significant consequences for the national interest when, as a result, policymakers 

are not fully informed, government is not held accountable for its 

actions, and the public cannot engage in informed debate. ‘‘Secrecy 

is a form of regulation,’’ the Senator said, ‘‘and while we’re all familiar with government overregulation, the public cannot know of 

overregulation when the regulation is kept secret from them.’’ 

Senator Moynihan also noted that while the then-controlling 

Presidential finding authorized 20 officials to use the Top Secret 

classification, meaning concerning information the disclosure of 

which could be expected to cause grave harm to our national security, some 2 million officials and a million private contractors have 

been given derivative authority to use that officially highest classification—3 million people stamping ‘‘Top Secret’’ on the flood of 

paper crossing their desks. 

The Moynihan commission recommended some changes in the 

law, including an office of declassification. Nothing was acted upon. 

In fact, when President Clinton ordered a mass declassification of 

documents from World War II and before, he was largely ignored 

by the bureaucrats who run the system. 

By the way, the oldest known classified document in the system 

at that time was a report on troop movements in World War I. As 

far as I know, it’s still classified. 

In 2006, the CIA and other agencies, in an operation that was 

itself classified, pulled 55,000 documents out of the public domain 

at the National Archives and reclassified them. I’m going to presume they’re still doing that. 

And so we come to the opening of the Obama administration. On 

inauguration day, the new President announced his commitment to 

a new era of openness and transparency. ‘‘My administration is 


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committed to creating an unprecedented level of openness in government,’’ he said in a message to all government agencies. 

Today, reporters describe this administration as ‘‘control freaks’’ 

and the most closed they’ve ever covered. The Obama administration has prosecuted more whistleblowers than any other and used 

the Espionage Act more often than any other administration to 

prosecute reporters’ sources. It has also spied on reporters and 

even their parents. 

The result of all this is inevitable, I believe. We now have a society in which large areas of government decision and action are routinely kept from the public. Think of Abu Ghraib and the torture 

of prisoners, official and unofficial. Think of massive spying on 

American citizens, whose phones, computers, vehicle movements, 

even bank accounts can be monitored without their knowledge. And 

if they have the ability, what makes you think they won’t use it? 

Oh, and, by the way, I’m sure the members of the committee realize this includes you. When you call the head of the NSA in here 

and ask him and he says, ‘‘No, we don’t spy on Members of Congress,’’ are you going to believe him this time? 

Our fear, heightened by the war on terrorism, is overwhelming 

the system of government that has served us for 240 years. Half 

of the Bill of Rights is now regularly ignored. Officials of our own 

government agencies seem to violate the Constitution at will and 

with impunity. Our senior intelligence officials blithely lie to you 

and to the American people in the name of security. And we can 

do little because we know little. 

I believe that young Mr. Snowden should not be hiding in Moscow and poor Private Chelsea Manning should not be serving a 

long prison sentence. Yes, they broke the law, but they did so in 

accordance with their conscience, which told them that what they 

were seeing was wrong. They should be here in Washington wearing black ties and receiving awards. Because of them, we are now 

having a public debate over serious issues we would not even know 

about. 

We need this debate. And, more than that, we need some action 

that will return us to the principles we have held to since the 

founding of the United States. We need to control our fear and control our government. 

Thank you. 

[Prepared statement of Mr. Anderson follows:] 


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Chairman CHAFFETZ. Thank you. 

I thank you all for your testimony. 

We will now recognize the gentleman from South Carolina, Mr. 

Gowdy, for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. And I want to thank you 

for your longstanding interest and commitment in this area. 

And our friend from Maryland put a slide up that dealt with 

budget constraints, and that just got me wondering—and I do want 

to welcome all of our panelists—could there possibly be any other 

explanation for the failure to fully comply with FOIA law other 

than budget constraints? 

Ms. Attkisson, can you think of any other possible explanation 

for either slowly complying or not complying at all with FOIA complaints other than budget constraints? 

Ms. ATTKISSON. Well, as I said, I think—yes. I think they’re creating their own backlog and creating their own expense by requiring us to go through a process, when it used to be if you asked a 

government official for a quickly available public document, something that’s easily accessible on their desk, they would give it to 

you. They now use FOIA to require you to go to the end of a long 

queue, where it will never be answered, thus creating this backlog 

themselves, I think intentionally. 

I got a couple of phone calls on the eve of the hearing, or mail 

contacts from outstanding FOIA requests, Federal agencies. I’m 

sure it’s just a coincidence. They just want to let me know that my 

request is still going, if I’m still interested, even though years have 

passed. 

And one of the officers—I don’t want to name names because this 

is someone who talks to me—said, ‘‘I don’t know what’s taking so 

long. This is ridiculous. We have all the papers that we’re supposed 

to be giving you,and there’s nothing in it except press clippings of 

your own work anyway, so I don’t know why the Department of 

Justice is holding it up.’’ And this is a request that’s been outstanding since at least 2013. 

So they’re doing this intentionally; I don’t think there’s any 

doubt about that. And then I think that creates their own expense. 

They could use the money they use fighting lawsuits and other 

things they don’t need to do to hire that staff they need to process 

the FOIA requests. And they can avoid a lot of FOIA requests by 

simply making obviously public information public without requiring the FOIA process. 

Mr. GOWDY. We will circle back to that judicial remedy before 

we’re through. 

Mr. Leopold, are there any exemptions that just cry out to you 

as being overused? 

Mr. LEOPOLD. Certainly Exemption 5, the ‘‘withhold it because 

you can’’ exemption. I’ve had—— 

Mr. GOWDY. It’s probably not worded precisely that way, is it? 

What’s the legal—— 

Mr. LEOPOLD. I don’t know. It’s redacted. So perhaps it’s underneath a redaction. 

Mr. GOWDY. What’s the legal jargon by which—what does (b)(5) 

say? 


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Mr. LEOPOLD. (b)(5) is the deliberative process. Interagency communications—— 

Mr. GOWDY. So it doesn’t have to be a legally recognized privilege. It can just be because we felt like it. 

Mr. LEOPOLD. Correct. 

And that’s—the use of that exemption has increased astronomically. I’ve received—or, excuse me, the FCC had processed thousands and thousands of pages related to net neutrality that I requested a year ago, and they withheld thousands and thousands of 

pages under the (b)(5) exemption. 

I believe this committee has some of those unredacted emails 

that I sought, so perhaps you can tell me what is—what’s contained in those communications, because the FCC is saying that 

it’s—you know, it’s part of the deliberative process. 

Mr. GOWDY. Mr. McCraw, it appears as if Members in my line 

of work are aligned, to a certain extent, with folks in your profession, which could be a sign of the apocalypse, or it could be that 

we are right. 

Judges seem to have no trouble getting compliance. So, shy of 

going to court, what should Congress investigate so we can at least 

get as good a result as an unelected person who happens to wear 

a robe for the remainder of his or her life? 

Mr. MCCRAW. I’m going to go with the theory we’re right rather 

than the end of days. 

I think that—and I mentioned this—that there needs to be a 

change in the culture. And that is hard to define how you get there. 

I think it’s easy to think about—and you’ve heard it here—what 

it would look like. And that is, just as they have customer service 

as a business, there should be citizen service. When you call that 

agency, somebody with a name, somebody with an email address, 

somebody with a phone number should be talking to you, and that 

you should be able to find out online whether your request is moving up, moving down, moving sideways, wherever it is. There 

should be reach-out to the requester community by the public liaison officer, by the chief FOIA officer to go over what we can do better. 

And this goes back to the question that you posed to Mr. Leopold, 

is that it seems to me that key here is the presumption of access, 

which is in the reform bill. Because I think the presumption now 

is fear, and the agency FOIA officers don’t want to get in trouble. 

They take the most conservative approach they can, knowing that 

that’s the way to avoid trouble. Presumption of openness, where it 

is reversed and you get in trouble for hiding things—very important move. 

Mr. GOWDY. Thank you. 

And thank all of our panelists. 

And I would yield back the time that I no longer have. 

Chairman CHAFFETZ. I thank the gentleman. 

Recognize the ranking member, Mr. Cummings from Maryland, 

for 5 minutes. 

Mr. CUMMINGS. Mr. McCraw, how long have you been doing your 

work in this capacity that you’re here today? 


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Mr. MCCRAW. Between the New York Times and the Daily News, 

I’ve been doing it on a daily basis for 15 years. I did some before 

that as well. 

Mr. CUMMINGS. So you’ve seen a lot. 

Mr. MCCRAW. I have. 

Mr. CUMMINGS. Over the years has the problem gotten worse do 

you think? 

Mr. MCCRAW. I’m sorry? 

Mr. CUMMINGS. Has it gotten worse, I mean, over the years? 

Mr. MCCRAW. I get asked that question a lot. I think it has gotten a little better in terms of knowing what is going on. I think 

some of the things that Congress did in 2007 have actually worked, 

so we understand more about the process, statistics and so forth. 

That’s important. In terms of requests, I haven’t really seen a great 

deal of change in terms of timeliness. 

Mr. CUMMINGS. Clearly there is a problem, and, you know, the 

people in the media and others requesting may have one opinion 

and then those who are in government have another opinion. And 

I think that you’re probably right when you talk about a culture 

of fear. And some kind of way we need to get to the bottom of that 

so that we don’t waste so much time, waste so much energy, waste 

so much money, and so that we can get to the basis of FOIA. I 

mean, why do we even have it? Sometimes I think that we think 

we are going to be on this earth forever, and life is short. 

And I was thinking about something that Ms. Attkisson said, 

talking about your daughter, started off in what grade? What grade 

did she start off in? 

Ms. ATTKISSON. Well, when I requested at the one point she was 

8 years old, and then she was going off to college 10 years later 

when I got a response. 

Mr. CUMMINGS. We’re better than that. We have got to do better. 

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

bill codifies in law a presumption of openness. You talked about 

that just a moment ago. The bill does this by creating a legal presumption in favor of disclosure in response to FOIA requests. When 

President Obama took office, he issued the memo that directed 

agencies to administer FOIA with, ‘‘clear presumption. In the face 

of doubt, openness prevails,’’ end of quote. You’re familiar with 

that, right? 

Mr. MCCRAW. I am. 

Mr. CUMMINGS. So the bills requires that records be disclosed 

under FOIA unless agencies can demonstrate, ‘‘a specific identifiable harm.’’ Now, in 2009 Attorney General Holder issued a memo 

instructing agencies that the Department of Justice will defend 

FOIA denials only if an agency reasonably foresees that disclosure 

would harm an interest protected by one of the statutory exemptions or disclosure is prohibited by law. 

Do you think that incorporating this standard into the FOIA 

statue makes sense, and do you think that would be helpful? 

Mr. MCCRAW. I do, Mr. Cummings, and it assures that that presumption doesn’t get changed as administration changes. I also 

think that when Congress says it there’s a chance the memo gets 

to the FOIA officers in a way that when the agency does. 


AKING-6430 with DISTILLER
36 

Mr. CUMMINGS. Let’s put a pin right there. 

Mr. MCCRAW. Yeah. 

Mr. CUMMINGS. Because I want to go back. Because I’m trying 

to get to the bottom of this. So what you’re saying is the rule can— 

or the President can say one thing, but because of then going back 

to something else you said, because of a culture, then a lot of times 

that’s not carried out. Is that—— 

Mr. MCCRAW. I think that’s right. Many of the civil servants will 

outlast any given administration. The other thing that makes it important for Congress to say it is when I go to court, the standing 

of that as a law, as part of FOIA, is going to be different than it 

is as a regulation. 

Mr. CUMMINGS. So in your testimony you talk about this culture 

of unresponsiveness. Do you think incorporating the presumption 

of openness into the FOIA would send the right message to agencies that they should err on the side of disclosure as long as it’s—— 

Mr. MCCRAW. Yes. 

Mr. CUMMINGS. Go ahead. 

Mr. MCCRAW. Yes, I do, Mr. Cummings. 

Mr. CUMMINGS. So you’re familiar with 653. Is there anything 

that you would add to it? You know, cultures are tough. We’re seeing this, the chairman and I, dealing with quite a few agencies, 

this committee. And the culture is hard to break sometimes. I 

mean, other than what we have, what do you suggest that we do? 

Mr. MCCRAW. I think there are some things that would help. One 

is in the past FOIA used to have preferential treatment when you 

filed a court case. I would like to see that come back. I would like 

to see better accounting of how fast they’re moving. The statistics 

tend to be at a level that don’t really help us understand the nittygritty of how they’re moving. 

I think that in the 2007 Act, there was the creation of the public 

liaison. I think the public liaison should be required to make requests that account for how he or she in each agency is doing his 

job, what’s happened over the course of the year. Those things 

would help. 

The most important thing, though, which would require some 

homework and some deeper dive, is that the exemptions have been 

given much, much too broad of a reading not only by the agencies, 

by the courts. Congress has the power to cut those back. That’s the 

single most important thing that would help. 

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

back. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentleman from North Carolina, Mr. Meadows, for 5 minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Mr. McCraw, I want to pick up right where you left off, the exemptions, because we have gotten a number of redacted pieces of 

correspondence that have not only E5, but it’s got all kinds of others. And so what you’re saying is if we were to clarify what can 

be redacted or what the exemptions are, it would help your process. 

Is that correct? 

Mr. MCCRAW. That is correct. 


AKING-6430 with DISTILLER
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Mr. MEADOWS. So in doing that, can you help this committee 

identify some of those areas? And I would say to all of you, can you 

help us identify those areas? I know we have got a second panel, 

and they have weighed in on this particular issue before. But what 

I’m finding is that that there’s a few catchalls. 

And yet here’s the interesting thing, and I think it was you that 

was talking about a culture of fear. I’m aware of no one, not one 

single person in all of the Federal agencies that ever got fired for 

giving out FOIA information inappropriately. Are you all aware of 

any? 

Mr. MCCRAW. I’m not aware of any. 

Ms. ATTKISSON. I don’t think they’re in fear of being fired. 

They’ve been directed by their superiors and by the political or the 

bureaucrats that persist from administration to administration how 

to handle these requests, and if they don’t do so, it doesn’t necessarily mean they’ll lose their jobs, they just won’t advance or 

something bad will happen to their career. 

Mr. MEADOWS. All right. So, Ms. Attkisson, you’re suggesting 

then that this is more of a directive than it is a lack of resources. 

It’s basically a directive that says we need to be as confidential and 

keep it as close to the vest, versus we just don’t have the time to 

respond. Is that correct? 

Ms. ATTKISSON. I believe it is. And I’ve spoken to FOIA officers 

who described that process, that they are required to submit documents—and this started many years ago, not just recently—to submit documents for political clearance, which as I said in my opening statement isn’t codified in FOIA law and yet is done all the 

time. And FOIA officers don’t agree with that, most of them, I 

think, the ones that I deal with. 

Mr. MEADOWS. So as an award-winning journalist, would you describe the closer you get to the heart of the matter, the more delayed those requests perhaps get, or is there no correlation? 

Ms. ATTKISSON. For me, I mean, everybody has a different experience, but in general I just get pretty much nothing quickly ever. 

One exception is I deal with one agency called HERSA that maintains vaccine injury information, and I have to say that when I ask 

them for something, they provide it on a timely basis without requiring a FOIA, and that’s the only agency I can think of that’s 

done that for me in any significant way in years. 

Mr. MEADOWS. Well, I can speak for myself, and I’m sure a number of my other colleagues would like to reach out to them and 

thank them and recognize them for the good job. Sometimes we 

don’t pat enough people on the back. 

Ms. Goodman, let me come to you. 

Ms. ATTKISSON. I’m afraid they’ll get in trouble because I mentioned their name. 

Mr. MEADOWS. Okay. Well, we’ll just unofficially just say thank 

you today if they happen to be watching. 

Ms. Goodman, let me come to you, because one of the things that 

you shared concerned me greatly. You’re saying that the chilling effect of potentially reporters and editors that are not here today testifying is because they are afraid that they may get some kind of 

reprisal from Federal agencies in terms of access if they are known 

to be complaining. Is that correct? Was that your testimony? 


AKING-6430 with DISTILLER
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Ms. GOODMAN. Yes. My testimony, which I didn’t read all of, also 

includes issues with the DOJ and IRS that I’ve had, and I fully expect that if those offices know that I’ve made that testimony today, 

then I will have more difficulty getting information the next time 

I call them, and that is the assumption of most journalists in 

Washington. 

Mr. MEADOWS. Well, we are asking, this committee is asking you 

officially then today that if you see any abnormal response times 

as it relates to future requests that may be indicative of your testimony here today, if you would please let this committee know, especially if it relates to IRS and the Department of Treasury. That 

comes under our subcommittee, so we would ask that. 

I want to finish with one final ask, Ms. Attkisson. As you look 

at the number of requests that have been made, many times the 

American people count on reporters to truly get the truth out there. 

Does it give the impression that not only just this administration, 

but government agencies across the board are less than transparent when they do not allow you to have that access? 

Ms. ATTKISSON. I think that’s true. And as someone else brought 

up, there are bureaucrats who persist from administration to administration and are just waiting for the current one to go out if 

they can just mark time long enough. I’ve dealt with the same bureaucrats in some cases from Clinton, Bush, and now Obama, some 

of the same people obstructing the same information. And maybe 

they move around a little bit, but they’re still there. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentlewoman from the District of Columbia, 

Ms. Norton, for 5 minutes. 

Ms. NORTON. Thank you very much, Mr. Chairman. It’s very interesting testimony. You would think that the free press and the 

public had a lot in common. I always thought that I was a First 

Amendment lawyer in a prior life and that the press should not be 

seen as the enemy. 

I will tell you that this committee will not see the press as the 

enemy until you get to investigate somebody up here. So it is in 

the nature of government that it will regard you as the enemy the 

more you want to know, and I’m not sure you’ll ever see much difference in administrations. 

And I’m interested in exemptions, whether or not there’s anything that the committee could say in terms of clarifying language 

that would do any good. The chairman may remember that we 

have done clarifying language on whistleblowers, and I’m not sure 

even that always matters since we would like them to come out 

and below the whistle without feeling reprisal, and there the notion 

of reprisal is not guesstimate. 

I continue, by the way, to be amazed with how much of your 

work you do for us. That is to say, people call the newspapers, and 

then they have a hearing because they read it in the newspapers, 

or they get a question that they wouldn’t have otherwise. 

So I’m interested in these kind of natural secretive agencies like 

DOD, you know, people like that. And I’m particularly interested 

that there has been what one would have thought would have been 

a clarifying Supreme Court decision, Milner v. Department of 


AKING-6430 with DISTILLER
39 

Navy, that said that the statute means what it says, that you’re 

supposed to give all records unless they’re related to personnel 

rules and practices of the agency. That’s pretty narrow. That’s a 

pretty narrow hole if you’re going to crawl through that. 

The problem I have here is it does not seem to have thwarted 

an agency like the DOD. The Court has held that exemption called 

exemption—this is exemption No. 2, the one says personnel stuff 

yeah, but over the other stuff, no. So DOD is proposing an expansion even of that, and even after the Supreme Court decision. 

And this is what it would say, and I’d like your view on this: Predominantly internal, you can withhold records that are predominantly internal to the agency but only to the extent that disclosure 

could reasonably be expected to risk impairment of the effective operation of an agency or circumvention of statute or regulation. 

What’s your view of that proposal from the DOD? What are they 

trying to do? What are they trying to do that exemption 2 doesn’t 

do? 

Mr. Leopold. 

Mr. LEOPOLD. I think, simply put, they’re trying to withhold 

more records and creating language that would thwart requesters’ 

ability to obtain certain records. The fact that this new language 

was, I believe it was buried in the NDAA, if I’m not mistaken—— 

Ms. NORTON. Yeah, that’s right. 

Mr. LEOPOLD. —I have not pored over it, but I see it as just another hurdle that requesters have to jump over. 

Ms. NORTON. And I’m interested in this because what the Court 

said is you can’t use broad language. So the implication is there’s 

narrow language you all can get to and maybe you will get over. 

So they’re trying, they’re trying, and here Congress has to respond 

by either putting it in—and you can scare Congress too in the age 

of ISIL. So this notion about no broad interpretation gets seen as, 

okay, make it as narrow as you can but broader than the one that 

says you can’t withhold information unless it’s personnel matters. 

Here’s another one, exemption 3: Add a statutory exemption that 

it could keep secret, ‘‘information on military tactics, techniques, or 

procedures.’’ Now, is that necessary? I mean, is that something we 

need to clarify, would you say? Is that in danger of being disclosed 

by any agency, Mr. Leopold? 

Mr. LEOPOLD. I have never received records, and I have asked for 

them. I’ve pretty much asked for everything from every agency, I 

think, that exists within the Federal Government. And by the way, 

let me just say that should Congress want to make itself subject 

to FOIA, I fully support that. 

But to answer your question, I’ve never received any records 

from any government agency that would reveal military movements, troop movements. 

Ms. NORTON. Have you asked for such information? I mean, are 

they concerned that you all might ask for something about where 

we are in Syria and what ISIL is doing? Is there something they 

have to protect themselves against? They keep coming back to the 

Congress whenever the Defense Authorization Act is up. 

Mr. Anderson, did you have something on this? 

Mr. ANDERSON. Ma’am, it seems to me the language you recited 

would allow them to withhold training manuals and things like 


AKING-6430 with DISTILLER
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that that I know that the military fears the terrorists will get a 

hold of and somehow learn to be better at terrorism. 

Ms. NORTON. And you don’t think they could already withhold 

that? 

Mr. ANDERSON. No, most of them are not classified in any way. 

Ms. NORTON. And there’s the rub, Mr. Chairman, because these 

are not classified materials, and so if they’re unclassified and the 

press wants to know why they can’t have access to them. Thank 

you very much, Mr. Chairman. 

Chairman CHAFFETZ. Thank you. 

I’ll now recognize myself for 5 minutes. I’d like to enter two 

records and ask unanimous consent. One is a memorandum of January 21, 2009, Freedom of Information Act from the President of 

the United States. Without objection, so ordered. 

Chairman CHAFFETZ. I would also like to introduce into the 

record, a couple months later, April 15, 2009, a directive from the 

White House, memorandum for all executive departments and 

agency general counsels from Gregory Craig, counselor to the President, reminder regarding document requests. Without objection, so 

ordered. 

Chairman CHAFFETZ. Here’s the concern. The President put forth 

a very laudable directive. He says: ‘‘The presumption of disclosure 

also means that agencies should take affirmative steps to make information public.’’ He says all agencies should adopt the presumption in favor of disclosure. And he goes on, and I think most people 

would applaud this type of thing. Certainly in one of his first days 

in office to do that is significant. It’s part of the reason we’re here. 

But I want to read to my colleagues a portion of this chilling effect that I think went out from the White House that changed that 

discussion quite dramatically. This is, again, to all executive department and agency general counsels: ‘‘This is a reminder that executive agencies should consult with the White House Counsel’s Office on all document requests that may have involved documents 

with White House equities.’’ 

Now, I’m not sure what the definition of White House equities 

exactly is. But he says in the second paragraph: ‘‘The need to consult with the White House arises with respect to all types of document requests, including congressional committee requests, GAO 

requests, judicial subpoenas, and FOIA requests.’’ 

Now, we can talk about the backlog. We can talk about the thousands of people that have been employed. We can talk about the 

millions of dollars that are allocated. But if you’ve got the yahoos 

at the White House having to review each and every document that 

falls under FOIA, judicial subpoenas, GAO requests, congressional 

committee requests, this is the heart of the backlog. The heart of 

the backlog lies in this memo, that we have to clarify, the President of the United States less than 4 months after he’s been in office, to say: No, no, no, no, no, no, no, don’t fulfill the FOIA request. 

Send it here to the White House. We have equities, the White 

House equities. 

You want to see the bottleneck, look at the White House. And if 

there’s further clarification, let’s see it. But right now it’s a threeparagraph memo, and it’s crystal clear: Folks, don’t you dare fulfill 

that FOIA request. 


AKING-6430 with DISTILLER
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This doesn’t say comply with the law. Does anywhere in FOIA, 

does it say that the White House General Counsel’s Office should 

review a FOIA request before it’s given to the public or the media? 

No. But it does say: ‘‘The need to consult with the White House 

arises with respect to all types of document requests,’’ and included 

in there is FOIA. And, it goes on, and it ‘‘applies to all documents 

and records, whether in oral, paper, or electronic form, that relate 

to communications to and from the White House, including preparations for such communications.’’ 

Mr. CONNOLLY. Would the chairman yield? 

Chairman CHAFFETZ. Sure. 

Mr. CONNOLLY. I thank the chairman. Chairman, I’d ask unanimous consent to enter into the record a memo from the George 

H.W. Bush White House Assistant Attorney General on this issue 

dated September 1, 1988, which is identical to the policy the chairman is decrying requiring that FOIA requests go through the 

White House. 

Chairman CHAFFETZ. Without objection, so ordered. 

Mr. CONNOLLY. I thank the chairman. 

Chairman CHAFFETZ. And what I would argue is, if it wasn’t 

right in the Bush administration, it’s not right in the Obama administration. I don’t care who’s in the White House, it’s wrong, it’s 

wrong, it’s wrong. It has a chilling effect. It slows people down. It 

sends a signal to those men and women who are on the front lines 

who are trying to do their jobs and have been hired to do it, don’t 

you dare send that to Mr. Leopold, don’t you dare give that to the 

New York Times, how dare you talk to CBS News, don’t you dare 

talk to Newsweek. And heaven forbid you should give Mr. Anderson the records about his captors because we wouldn’t want to offend the people that kidnapped Mr. Anderson for 7 years. 

That’s the problem. That’s the problem. The message from the 

President, the message from the White House should be open it up. 

What are we afraid of? It was the Bush administration that did all 

that. Why couldn’t we have done what the President asked for on 

day one of his administration, the first day he put it out there? 

My guess is if we—this is a guess, total guess—if we had the 

President of the United States right here, his heart was in the 

right place, he wanted to do the right thing, he wanted to score 

points with the media, he wanted to score points with the public, 

he’d score points with me, the problem is 4 months later he made 

the same mistake evidently that the Bush administration made. In 

fact, it’s worse. The backlog is double what it was. 

And that’s the problem. That’s why we’re here today. We’re going 

to try to legislate. We’re going to try to clarify further. But when 

you send out this email, you scare everybody and saying you better 

not send it out unless you get it to the White House. 

Now, do any of you have a comment or question or want to respond to what I just said? Mr. McCraw, do you have any thought 

about this email and what it would do? 

Mr. MCCRAW. I’m going to come back to a very simple thing, 20 

days. Whatever the process is inside, follow the law and get the 

documents out to us in 20 days. That’s what should happen. 

We saw something similar in New York City when the Giuliani 

administration left, which had been very centralized, and the 


AKING-6430 with DISTILLER
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Bloomberg administration stepped in, and the mayor’s office essentially empowered the agencies without getting permission from the 

mayor’s office to release stuff. It was a good day. And some of the 

agencies couldn’t believe it. Took them a while to get used to the 

freedom. But, yes, the law should be abided by, and 20 days should 

mean 20 days. 

Chairman CHAFFETZ. Thank you, sir. 

On my list, based on attendance here, Mr. Lieu is up next, and 

we’ll now recognize him for 5 minutes. 

Mr. LIEU. Thank you, Mr. Chairman. 

Let me first thank the panel for what you do. I believe the best 

protection for America and our way of life is not the NSA or the 

FBI, it’s a free press that points out Federal governmental overreach, as well as overreach in the private sector. 

I had a question for Ms. Attkisson. In your testimony you mentioned you had filed a FOIA request to the Centers for Disease 

Control about 8 months ago on the Enterovirus. Have you gotten 

a response yet or you still have not? 

Ms. ATTKISSON. No, sir, I haven’t received any documents. Just 

when I ask, they tell me they’re working as fast as they can. 

Mr. LIEU. Thank you. 

And then to Ms. Goodman, I was floored when you said that you 

and other journalists may believe that you would face reprisal from 

agencies if you sort of spoke up and so on. So I have a question 

for you. Do you believe you have no recourse? Could you go to the 

IG or to another place to try to get protection? Or do you believe 

that, for instance, being here today, you’re going to face a much 

harder time getting some information in the future? 

Ms. GOODMAN. Let’s see. How do I answer that? It’s not just no 

recourse. It’s literally, I mean, even not agreeing to their terms will 

cause huge consternation in that agency. 

So, for example, when the SEC proposed to me that we’ll give 

you information and just put it in the story, and I said, all right, 

I’m going to attribute it to the SEC, according to the SEC, whatever, they said: No, no, no, you can’t do that, you can’t say it came 

from us. That means when I write it, it looks like I think that what 

they said is true as opposed to I’m saying they said something is 

true. It’s misleading, patently misleading to the reader. 

And if you say, no, I will not do that, it’s not just that there’s 

no recourse, it’s that now you’re a sworn enemy of their office and 

as soon as they hear your name they will not answer your calls for 

sometimes days and you’re on a deadline. 

So, no, it definitely can be very hostile, and it’s with the presumption on their part that they’re entitled to do this to you, that 

they set the rules and you have to follow them, and if you don’t, 

you’re difficult. 

Mr. LIEU. Thank you. That’s just very troubling. I think that’s 

not the America that most of the public would want to live in. 

I’m going to reserve the balance of my time to make a statement. 

I believe the problems that the press is encountering with FOIA to 

me is the latest indication of the brazenness with which some of 

our Federal agencies violate congressional law and the Constitution. You see this with the NSA when they completely violated the 

PATRIOT Act by conducting mass surveillance on Americans’ 


AKING-6430 with DISTILLER
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phone records without any authorization from Congress. That’s 

what the Second Circuit Court of Appeals said. You see that when 

the Director of National Intelligence comes to Congress, takes an 

oath, and lies to Congress. You see that when the FBI has been 

vacuuming up people’s geolocation and their cell phones. Until recently they only started getting warrants for that. 

When Federal agencies violate congressional law and the Constitution it is corrosive to our democracy, it undermines trust in the 

executive branch, and makes Members of Congress like me not 

want to give the executive branch any sort of rope to do additional 

things. It makes it hard for me as a Democrat to try to support 

things that the executive branch may want to do where they’re asking for some sort of trust. 

They could stop it now. They could simply tell the agencies to follow the law and follow the Constitution. It doesn’t require Congress 

to act. They can also put in incentives. I was probably one of the 

few Members of Congress that actually worked on FOIA requests. 

When I was a young JAG, United States Air Force, I was responsible for doing these exemptions. And, of course, I met the deadlines always, but I also did notice that it didn’t matter whether or 

not I met the deadlines. There were absolutely no consequences. 

And when you have delays of not just months but years, then 

what you have is not just people not caring, you have deliberate 

withholding of information. And, again, that is also corrosive to democracy. 

So it’s my hope that Congress passes the law. Of course, we don’t 

need to do that if simply the Federal agencies would just follow the 

existing law. 

With that, I yield back the balance of my time. 

Chairman CHAFFETZ. I thank the gentleman. 

Mr. CONNOLLY. Mr. Chairman, can I just correct the record? 

Chairman CHAFFETZ. Sure. Go ahead. 

Mr. CONNOLLY. My friend from South Carolina caught the error. 

I indicated that the letter, the memo, from the White House dated 

1988 was during the administration of George H.W. Bush. Obviously it was Ronald Reagan. And I correct the record. Thank you, 

Mr. Chairman. 

Chairman CHAFFETZ. I appreciate you doing that. 

I now recognize the gentleman from Michigan, Mr. Walberg, for 

5 minutes. 

Mr. WALBERG. Thank you, Mr. Chairman. 

Let me ask Ms. Attkisson, based on your experience, what agencies have excessively used exemptions as was referred to by the 

preceding questioner? 

Ms. ATTKISSON. I haven’t dealt with all of them, but among the 

ones I’ve dealt with and most recently, I’ve gotten documents that 

have been, in my opinion, overly redacted from the State Department and Health and Human Services. The documents I keep 

showing with these (b)(5)s—there are tons of these, I just pulled 

out a few—are about healthcare.gov. And these are just emails 

about our business, nothing about national security, nothing that 

could possibly put us in danger or help terrorists, I don’t think. 

These are conversations that they are saying were part of a deliberative process, which pretty much they’ve used to say everything 


AKING-6430 with DISTILLER
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they do is part of a deliberative process until they put out a public 

press release announcing something they’ve done. 

Mr. WALBERG. Take a little more time to explain the (b)(5) exemption. I understand it’s basically called the ‘‘withhold it because 

you want to’’ exemption. 

Ms. ATTKISSON. That’s a nickname that has been given by people 

who have seen it overused and feel that the agencies have come to 

use it for anything that they want to withhold. Even though I 

think the intention was—I don’t know what the intention was. I’m 

not a FOIA law expert about how it was created, but it seems to 

me it was to protect certain materials that could be very sensitive 

because maybe they were deliberating something internally and between agencies that would be bad for the public to know about. But 

that should be interpreted very narrowly, as all, I think, FOIA exemptions should be interpreted. Instead they slap that on just 

about anything they want to withhold. 

Mr. WALBERG. Mr. McCraw, would you concur with that about 

the (b)(5) exemption? 

Mr. MCCRAW. It is widely overused. It was intended to provide 

a certain amount of privacy to deliberation while a decision was 

being made so that people could give frank advice to leaders of an 

agency. I think once a decision is made that consideration falls 

away, but we see (b)(5) being applied to historic documents long 

after the deliberations are over. 

The other thing I would raise is that the law has generally been 

interpreted that the facts should be released even if it’s in a memo 

that’s providing advice, if it summarizes a factual situation. We 

find that agencies don’t take that step. And sometimes those facts 

are more important to us than the advice that ultimately is given 

in a conclusion. 

Mr. WALBERG. Mr. Leopold, have you experienced an increase in 

agencies’ use of exemptions over the last several years? 

Mr. LEOPOLD. Indeed, and (b)(5) would certainly fall within that 

overuse of that exemption. I deal with many agencies, CIA, NSA, 

Department of Defense, so it’s understood that certain information 

that I’m seeking, certain documents that I’m seeking, that there’s 

going to be other exemptions that are used, exemptions like (b)(1), 

the national security exemption. Oftentimes, though, it becomes 

clear when these cases go to court that some of the information 

that is being withheld is being withheld to protect the government 

agencies or the administration from some sort of embarrassment, 

even the national security exemption. Those exemptions are used 

across the board at all government agencies. 

I also just want to make a point here, since Mr. Cummings 

brought it up, about what could be done in this bill that you’re 

working on. Please put something in the bill that holds some of 

these agencies and some of the FOIA officers accountable. There is 

no penalty at all for routinely violating the law, violating FOIA. So 

they can do it at will, and they do it, and there is no accountability 

whatsoever, there are no repercussions at all as a result of that. 

Mr. WALBERG. I appreciate that. 

Ms. Goodman, what’s your experience with agencies excessively 

using exemptions to redact information in FOIA requests? 


AKING-6430 with DISTILLER
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Ms. GOODMAN. I was just going to say maybe if a FOIA officer 

overly redacts, they could just be docked one week’s pay, and I 

think you’ll see a huge difference in the kind of responses you get. 

I don’t regularly use FOIAs. Actually, I would like to defer that 

to Mr. Leopold and Ms. Attkisson. In my case, unless I want to 

wait a long time for something, I don’t do it. 

Mr. WALBERG. Okay. Well, let’s go back to that, as far as redacting. Has there been a significant increase in agencies excessively 

redacting in FOIA requests? 

Mr. LEOPOLD. I’ve certainly seen more documents that I request 

are increasingly redacted. The Defense Intelligence Agency recently 

sent me 150 pages of completely redacted pages related to—— 

Mr. WALBERG. We have experienced the same on this committee. 

Mr. LEOPOLD. This was quite stunning, and I’m trying to figure 

out how I can turn it into some sort of art display. But these were 

completely redacted pages related to the damage assessment that 

the Defense Intelligence Agency undertook with regard to the alleged damage that resulted from the leaks from Edward Snowden. 

Mr. WALBERG. Thank you. We believe it’s a new font. 

But my time has expired. I yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

I will now recognize the gentleman from California, Mr. 

DeSaulnier. 

Mr. DESAULNIER. Thank you, Mr. Chairman. 

This hearing is reminding me of a comment that a friend of mine 

who used to serve on the Los Angeles City Council used to say 

about government agencies. She used to say: I used to believe in 

conspiracies until I discovered incompetence. And sitting here 

today, I can’t help but think there’s a little bit of both. 

But to the point of both the chairman’s comments and others as 

to what is the motivation and the consequences. So, first of all, Mr. 

McCraw, having hearing what others have said, particularly Mr. 

Leopold and Ms. Attkisson, if we get the exemptions really tightened up, absent personal consequences for people withholding this, 

don’t you think we need both? 

Mr. MCCRAW. Need both personal consequences and—— 

Mr. DESAULNIER. And the exemptions tightened up. 

Mr. MCCRAW. And exemptions. 

Mr. DESAULNIER. So if you go to court and you get the exemptions tightened up but people continue to ignore the statutes, what 

good will it do. 

Mr. MCCRAW. That’s right. I do think that there should be a 

process by which if there is willful disregard for the law, that there 

should be consequences that go back to those folks who are actually 

doing the disregarding. 

Mr. DESAULNIER. So maybe, Mr. Leopold and Ms. Attkisson, 

since you have both brought up personal consequences, what do 

you ascribe that to? That they are protecting the culture of the 

agency? Are they protecting political influences? Is it a combination 

of all of those? And have either of you or any of you ever seen examples of people sort of the reverse, being punished for doing what 

you’re accusing them of doing, which is avoiding the letter of the 

law? 


AKING-6430 with DISTILLER
46 

Mr. LEOPOLD. To your latter question, no, never. I don’t know 

what the reason is that certain agencies just simply will not give 

up records. Let me give you an example of the Office of Net Assessment. 

The Office of Net Assessment is the Pentagon’s in-house think 

tank. They spend millions and millions of dollars putting together 

reports, reports that they contract out about perhaps some futuristic warfare or what the situation in the Middle East is going to 

look like with regard to oil. 

I asked for those reports. I filed a FOIA request. They refused 

to comply with my FOIA request. They said it was too broad. I narrowed it. They still said it was too broad. I sued them. Recently 

they said that: We’ll give you some documents as long as you promise to never file a FOIA request again and don’t have anyone else 

file a FOIA request on your behalf. 

Mr. DESAULNIER. How is that legal? 

Mr. LEOPOLD. I don’t know, but they put this in writing, and I’m 

really looking forward to the day when I write the story up. 

Mr. DESAULNIER. Did you tell them no? 

Mr. LEOPOLD. Yes. My employer, who is sitting right here, did 

tell them that. 

Mr. DESAULNIER. It was meant as levity. 

Mr. LEOPOLD. I don’t know why they simply will not turn over 

these reports. They’re not classified, okay. By the way, not only will 

they not give up the report, they can’t find the reports. So they’re 

saying that they won’t give me the reports, but at the same time 

they’re also saying: We don’t know where they are. So millions of 

dollars of taxpayer dollars are being spent. I think the public has 

a right to find out about what these reports are. 

Mr. DESAULNIER. Before Ms. Attkisson goes ahead, just so I can 

try to get the second part of the question in. 

Ms. ATTKISSON. I think it’s as simple as there are no repercussions if they withhold material that they should release, but there 

may be repercussions for them if they release material that we 

want when their superiors wanted them to withhold it. 

Mr. DESAULNIER. Okay. We have tried to do FOIA, I understand. 

So it seems to me in this day and age where we have search engines that can give you all kinds of information, wouldn’t it be 

more efficient if all of the agencies just were required to do everything electronically, and then we could actually reduce the period 

of time from 20 days down further? And do you have examples either where that’s worked or—— 

Ms. ATTKISSON. I think even starting today, because it’s a big job 

of course, but if starting today the agencies posted online routine 

business and emails and so on as they come in, they wouldn’t have 

to deal with all the FOIA requests, multiple FOIA requests for the 

same information from different people, which costs more money 

and staffing and time. 

Mr. LEOPOLD. I routinely check all the government Web sites’ 

FOIA reading rooms. 

Mr. DESAULNIER. I saw that. 

Mr. LEOPOLD. They’re not regularly—— 

Mr. DESAULNIER. You live an exciting life, Mr. Leopold. 


AKING-6430 with DISTILLER
47 

Mr. LEOPOLD. Thank you, yes. It’s quite exciting. Thank you for 

that. 

But I do check their reading rooms regularly, and they don’t update it. They don’t update their reading rooms with documents, 

which they should. 

But in terms of electronically, I mean, I file requests electronically, I get responses electronically, and oftentimes I do get records, 

even though they’re heavily redacted, electronically as well. So I 

think that on that end it’s working to some degree. 

Mr. DESAULNIER. Thank you. 

Thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

I recognize Mr. Mulvaney from South Carolina. 

Mr. MULVANEY. Thank you, Mr. Chairman. 

And I want to go back and address some of the issues that Mr. 

Connolly raised. I appreciate Mr. Connolly making the clarification 

regarding the origin of the document from 1988. It wasn’t the Bush 

administration. It was the Reagan administration. But I think that 

there’s something more to it than that. 

Mr. Connolly suggested that the policy enacted in the waning 

days of the Reagan administration were the exact same, I think 

was his language, the policies were the exact same as the memo 

that the chairman cited from the early days of the Obama administration. He’s already read that language from 2009. 

The policy from the Reagan administration, with all due respect, 

was entirely different. It said that in processing requests from the 

Freedom of Information Act of the Privacy Act of 1974 the search 

for responsive records occasionally turns up White House records 

located in agency files. It goes on to say later on that records originating with or involving the White House office—and it specifically 

identifies what that means, deputy chief of staff, communication, 

speech writing, research, public affairs, et cetera—that if you find 

some of those things you have to call the White House Counsel. 

Then it goes on to say that press briefings are not covered because they are in the public domain. It says that if stuff comes to 

the Executive Office of the President, the White House would like 

to see that. And then finally, if they’re classified or sensitive regarding foreign relations, that you might want to call the White 

House before you respond to a FOIA request on that. 

That is entirely different, entirely different from this administration’s memo of 2009 which dealt not only with FOIA, but with congressional requests, GAO requests, judicial subpoenas, everything 

to every single agency for anything that had anything to do with 

White House equities. So I think to characterize the two as being 

exactly the same or even similar is wrong. 

Which leads us to the issue that I think everybody is sort of 

afraid to talk about because we have had a really good couple of 

hearings here with some bipartisan support on the issues, and 

clearly there are folks on both sides of the aisle who don’t like 

what’s happening here, but I don’t think you could ignore what the 

chairman raised in his comments just a few minutes ago, which is 

it’s different now, isn’t it? It’s different now than it was 5 years 

ago, 10 years ago. 


AKING-6430 with DISTILLER
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Ms. Attkisson, you said that it wasn’t really because there were 

some bureaucrats who go from administration to administration, 

but it’s different now, isn’t it? 

Ms. ATTKISSON. I don’t know the whole picture, but you found 

this memo from the Obama administration and you found one from 

the Reagan administration and I saw one like that under the Clinton administration. So something is happening. It’s as if the Department of Justice gets the memo with a new President and 

issues the standard memo. Even though there may be variations in 

the specifics, this memo goes out to everybody saying something 

like that. 

Mr. MULVANEY. But it is, you didn’t come here during the George 

W. Bush administration to have this hearing. This is not easy for 

you all to do. You said that, some of you, in your opening statements. You didn’t come here during the Clinton administration. 

You’re here now. It’s different now, isn’t it? It’s worse now than it 

was before or else you wouldn’t be here. 

So I guess my question is this. We count on you folks to do something. You’re the fourth estate. We’re counting on the press to do 

its job, to do investigative reporting. Has anybody written on this? 

I mean, this is a big deal. Now is your chance. Mr. Leopold, have 

you written on this? 

Mr. LEOPOLD. On this being what? 

Mr. MULVANEY. The inability to get documents through FOIA 

from this administration. 

Mr. LEOPOLD. Yes, extensively. 

Mr. MULVANEY. Ms. Attkisson, have you written about this? 

Ms. ATTKISSON. I haven’t. Associated Press has done some excellent work on this. But I would say it’s hard to tell in a short story. 

And TV, it’s hard visually, I think TV people think it’s hard to tell. 

I think there’s a way to do it, and I also argue that we should be 

doing it frequently because that kind of pressure would help shake 

things loose as much as anything else, I think, if we covered it. 

Mr. MULVANEY. Ms. Goodman, you said something that caught 

my attention, which is about the chilling effect, and I think someone earlier asked you the fact that there’s no Washington area editors here, and that you were afraid about repercussions when it 

comes to access in the future, I think is your words. Again, I’m 

paraphrasing. I don’t mean to put words in your mouth. It would 

be more difficult for you to get information going forward. Is that 

about what you testified? 

Ms. GOODMAN. I think the reason why you haven’t seen a journalist do a macro story on a bunch of agencies and how they might 

be stonewalling, or increasingly stonewalling, is because they may 

need to call those agencies in the future and work with them, and 

it’s sort of seen as tattling on the playground. You know, we all 

have to be in this playground and we’re supposed to play friendly. 

But what I’m finding, I do think that I am seeing over the last 

I would say decade, I would say really since September 11, I have 

seen this fear culture that Mr. McCraw had referred to earlier, and 

it is don’t let those journalists get anything. It’s exactly what Ms. 

Attkisson said about there’s a punishment or the idea that you 

messed up if you give those journalists anything that they might 

use that will humiliate or embarrass or show that this fear culture 


AKING-6430 with DISTILLER
49 

has really gotten out of control to the point where it’s taking away 

our liberties. 

Mr. MULVANEY. So let me ask you one last difficult question. By 

the way, I recognize the fact it’s not easy to do this, especially 

given what you do for a living, because you expose yourself to exactly that type of risk. But I have to ask you the next question, because you specifically mentioned in your opening testimony that it 

was somewhat worrisome, I don’t remember your exact language, 

dealing with the DOJ and the IRS. So I guess my question is, are 

you worried about repercussions that go beyond just access to information? 

Ms. GOODMAN. Always. 

Mr. MULVANEY. I will yield back. Thank you. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentleman from Massachusetts, Mr. Lynch, 

for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. It’s a great hearing. 

I want to thank the witnesses for your input. I actually am the 

ranking Democrat on the National Security Committee, and I have 

a hard time. I’ve got top secret clearance and try to get information 

from the agencies that you are complaining about and the FBI and 

Department of Defense. And I have to say it’s very, very difficult 

even under the circumstances we’re under where you go into a secure room and you’re not allowed to take notes and got to give up 

your electronics and then try to parse through some of these documents. So I am totally with you. 

I just want to offer a couple of examples. With the FBI, through 

FOIA, we are able to get information that through their confidential informant program the FBI in 2011 and in 2012 allowed their 

confidential informants to commit crimes between 5,000 and 6,000 

times. But when I asked what are those crimes, that is confidential. And when I asked how much are you paying these confidential 

informants, housing, payments, and a lot of them are career criminals, that is confidential. So we’re facing the same basically shutdown in transparency that you all are. 

The Department of Defense, recently the commanding general in 

Iraq, we on a quarterly basis get reports from the inspector general 

for the Department of Defense, and he tells us how much money 

they’re spending and what they’re spending it on. Well, the commanding general, General Campbell, recently said that Congress is 

no longer going to be able to get those classified reports on what 

they’re spending, and the reason was because if the insurgents got 

that, if the terrorists got that information, it might somehow undermine their effort. So it is absolutely ridiculous. 

So I want to get to something. And then even this morning, this 

morning I was at a press conference with some of my Republican 

and Democratic colleagues to try to get the 28 pages that have 

been redacted from the 9/11 investigation, trying to get that 28 

pages, because I think it is very important that the American people get that information, that the families get that information. 

And I also think that the information in that 28 pages will inform 

Congress’ security protocols and antiterrorism efforts enormously 

going forward. So it’s good to have that information out there for 

instructive purposes. 


AKING-6430 with DISTILLER
50 

So what I want to get at is, Ms. Attkisson, what you suggested 

in the beginning. You said we need to incentivize corporation and 

disincentivize the logjam. And I do believe that we have to criminalize—look, there’s constitutional rights involved here. 

Mr. Anderson, you were very articulate in your comments, the 

freedom of speech, the freedom of the press. There’s also the freedom to petition your government, which I think implies a right to 

get a response. 

So I do believe, I do believe, we have to penalize this ridiculous 

and obstructive conduct, number one, that amounts to criminal obstruction of justice and of information by our government agencies. 

I also think we need to turn it around so that the costs, the costs 

of citizens, including the press, in getting that information that is 

delayed unreasonably, the costs of all that with penalties should be 

borne by the agency so that we have direct responsibility on these 

agencies to respond. You have to incentivize good behavior. What 

we are looking for is them to be more responsive. 

So I actually think we do need to have criminal or civil penalties 

against these individuals that are conducting this obstruction and 

again shift the costs on behalf of the taxpayer. I realize that eventually we pay for everything, but you need to penalize these agencies in some way so that it changes their behavior. 

I’ve eaten up the bulk of my time, but if any of you have a 

thought on that, I’d like to hear it. 

Mr. Anderson? 

Mr. ANDERSON. Yes, sir. I think it’s significant that you’ve heard 

here stories, not just from this administration or the previous administration or the administration before that. My adventures took 

place beginning in 1992. 

Mr. LYNCH. Yeah. God bless you, by the way. 

Mr. ANDERSON. And Senator Moynihan issued his report after 2 

years of study about the same time in the mid-1990s, and I don’t 

think any of us would suggest that the situation has gotten any 

better. 

Mr. LYNCH. Thank you, sir. I yield back. 

The CHAIRMAN. I thank the gentleman. 

I now recognize the gentleman from Georgia, Mr. Hice, for 5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

I want to begin with you, Ms. Attkisson, if we can. You mentioned in your testimony that the system is broken and that the 

Freedom of Information Act, in your opinion, is not broken by accident, but that it appears to be by design, a design of obstruction. 

Do you have evidence that you could provide for that statement? 

It’s a strong statement. 

Ms. ATTKISSON. I could probably compile something for you. It’s 

repeat patterns from the same officials who at the end of the day 

have been found to have been holding documents that were legitimately public documents or redacted things that were improper or 

go to the courts over and over again only to at the end be told by 

the court that they should have provided this material originally 

and initially. 

The patterns of the language they use when they’re denying requests, the increase in the (b)(5) exemption almost as if there’s 


AKING-6430 with DISTILLER
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been some coordination among the agencies that they know they 

can expand the use of certain exemptions in certain ways, the 

across-agency language that has bloomed up more recently where 

they want you to narrow your requests, where they say that they’re 

overbroad. 

This is a fairly new one to me. Across the board the ones I deal 

with will say they don’t understand it. I never used to get that. 

Now they say they don’t understand your request. The request is 

very simple and straightforward. 

So this, along with a lot of other anecdotal data, would lead anyone with commonsense to believe that there is some sort of willfulness. And also I’ve talked to FOIA officers, including one I reported 

a story on who used to work at the Commerce Department who 

talked about willful plans to withhold documents from the public 

and Congress. 

Mr. HICE. Would you please provide that information to this committee? 

Ms. ATTKISSON. Yes, sir. 

Mr. HICE. Thank you. 

If we can, I’d like a yes or no answer as much as possible from 

each of you, because I want to cover a couple of questions pretty 

quickly. Have each of you seen the breakdown in FOIA increase 

under this administration? I know we have had that question a 

couple times. Just yes or no, whatever your answer, Ms. Attkisson. 

Ms. ATTKISSON. I don’t have an apples-to-apples comparison. 

Mr. HICE. Okay. 

Mr. Leopold. 

Mr. LEOPOLD. Yes. 

Mr. HICE. Okay. 

Mr. McCraw. 

Mr. MCCRAW. No, I don’t think it’s worse than before. 

Mr. HICE. Okay. 

Ms. Goodman. 

Ms. GOODMAN. I think that there’s more stonewalling now, yes. 

Mr. HICE. Okay. 

Mr. ANDERSON. I don’t qualify. 

Mr. HICE. You don’t qualify. Okay. 

All right. With that, again yes or no, and this can go all the way 

back to 1992, whatever, but yes or no, do you believe that—obviously personnel, at least as a general rule, do not act without some 

directives from superiors. So from your experiences, do you believe 

that be it the current administration or other superiors are giving 

directives to agency personnel to obstruct FOIA requests? 

Ms. ATTKISSON. Yes, and I’ve been told that firsthand by officers. 

Mr. LEOPOLD. I can’t answer that question. I have no evidence 

to support it. 

Mr. MCCRAW. I agree with Mr. Leopold’s answer. 

Mr. HICE. Okay. 

Ms. GOODMAN. I would say yes, yes. 

Mr. ANDERSON. It seems to be more a matter of culture rather 

than directives. It’s not necessary to order a bureaucrat to keep secrets. 

Mr. HICE. Okay. Well, even there, a culture doesn’t just happen 

by accident. Cultures are created. All right. 


AKING-6430 with DISTILLER
52 

Yes or no again, one more time, have you personally experienced 

delays that you believe were designed to wait out the usefulness of 

the FOIA requests that you made? 

Ms. ATTKISSON. Yes, sir. 

Mr. LEOPOLD. Can I say hell yes? Yes. 

Mr. HICE. You just did. Okay. 

Mr. MCCRAW. I don’t have the evidence of that, but it certainly 

would appear that way at times. 

Ms. GOODMAN. I agree with Mr. McCraw, same thing. It looked 

like they’re running down the clock, but I couldn’t prove it. 

Mr. ANDERSON. Absolutely. I think that was the entire purpose 

of the exercise. 

Mr. HICE. Okay. All right. So, obviously, there is a problem here 

that is intentional, at least from every one of your perceptions. This 

is not accidental happenstance, this is purposeful. When we’re dealing with a First Amendment that guarantees freedom of speech, 

you are prohibited from providing freedom of speech in your careers. 

Mr. Chairman, I’m just concerned that these agencies, under 

whatever directives, be it from the White House or whatever authorities, are deliberately delaying and obstructing FOIA requests 

in order to hide politically sensitive information or whatever information they simply don’t want the public to have. And this is something that we need to pull up by the roots, sir. And I thank you 

for having this hearing today. I yield back my time. 

Chairman CHAFFETZ. I thank the gentleman. 

I will now recognize the gentlewoman from Michigan, Mrs. Lawrence, for 5 minutes. 

Mrs. LAWRENCE. Thank you, Mr. Chairman. 

One thing I think has been clearly documented today, that we 

have a problem. It’s a problem that didn’t start with this administration because we talked about a culture and those who wait out 

administrations. So I want to shift it a little bit to how can we 

move beyond this. 

The proposed Freedom of Information Act would allow OGIS, 

which is Office of Government Information Systems, the discretion 

to issue advisory opinions. The OGIS could issue an advisory opinion at the request of any party using that office’s mediation services. 

Mr. McCraw, do you think this provision is workable, and would 

it help OGIS in its mediation efforts? 

Mr. MCCRAW. Yes, it would, Ms. Lawrence. That is a model that 

is used in many States, including New York State. There is a Committee on Open Government, which is a part of the Department of 

State, of New York State. They issue nonbinding opinion letters. 

Very helpful to us to know, you know what, we’re asking for too 

much. Very helpful when we get one that says the agency is not 

doing what it should be doing. And a lot of times we can use that 

with the agency to change its behavior. 

Mrs. LAWRENCE. I want it on the record that I feel that the concerns about docking someone’s pay or culture, that if we want effective government we have to find a way to move to the point where 

we are effective. I’m very concerned about the same conversation 

being where we’re cutting staff, we’re cutting funding. And the 


AKING-6430 with DISTILLER
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records have shown that, therefore, the Department of Justice 

alone, they received 64,000 requests last year alone. And then we 

consistently see staffing and budgets cut. So I feel that the proposed mediation process will help on both sides. 

I have one other question, Mr. McCraw. These assessments will 

be provided directly to Congress while continuing to serve as a neutral, impartial mediation in the FOIA disputes. In your view, can 

OGIS provide candid assessments—you referenced New York— 

about agency performance without compromising its ability to serve 

as an impartial mediator in these disputes? 

Mr. MCCRAW. You raise a very good question, and the mediation 

part is different than it is under state law in New York where that 

office did no provide those services. It’s there to reflect on what the 

law should be and how it should be interpreted. 

I have seen in New Jersey where they offer up mediation services through their state agency that oversees. And you can have it 

both ways, just as courts do it. It requires capable people. But it’s 

not uncommon in Federal court to have the district court say the 

magistrate would like to mediate this or the district court judge 

himself or herself. So, yeah, I think it can be done. It’s worth trying. 

Mrs. LAWRENCE. Ms. Attkisson, are you coming back? 

Ms. ATTKISSON. Yes, ma’am. I’m sorry. I have to go to the ladies’ 

restroom. 

Mrs. LAWRENCE. Okay. 

I just want—I want a government that is responsive. I have 

worked with two government agencies and have been the official 

FOIA coordinator. Some requests seem excessive, some requests 

you can get from multiple agencies, but every single request requires manpower to respond. 

There is a frustration when the media—and not only the media, 

requests from private citizens. Because this is bigger than just the 

media. I have a right, as a private citizen, to ask for information, 

and I feel that I deserve that. But we have to create an efficiency 

in our government that can be responsive. And while I hear the 

concerns of the media, I’m concerned about our overall responsibility. 

I wanted to ask Mr. Leopold, what is your opinion of this mediation process and some of your frustrations that you’ve shared? 

Mr. LEOPOLD. With regard to the Office of Government Information Services, I mean, basically, they have absolutely no power because the Office of Information Policy within the Justice Department that’s supposed to ensure that all government agencies are 

adhering to Attorney General—former Attorney General Eric Holder’s guidelines, they don’t allow them to have any power. They’re 

interfering with that role—with that role of the FOIA ombudsman. 

So it gets much deeper. 

I want to also for the record state that I have never, ever received a response from any government agency, nor a phone call, 

that says, ‘‘We are experiencing budget constraints; therefore, we 

can’t process your request, nor can we give you any records.’’ Never 

heard that before. So I recognize that budget constraints exist 

within the Federal Government, but it has never, ever—I’ve never 

heard of it impacting my ability to access records. 


AKING-6430 with DISTILLER
54 

And, you know, one thing about—one great thing about FOIA is 

that you cannot only—you don’t—in addition to filing FOIA requests, you can actually file a request to find out how the specific 

agency is handling your request. I like to call it the meta-FOIA. 

Mrs. LAWRENCE. Yeah. 

Mr. LEOPOLD. And I ask for processing notes, and within the 

processing notes you can see how these agencies are handling the 

requests. 

And, within the Office of Information Policy, I could tell you that 

I’ve obtained documents with regard to one of my requests where 

the FOIA officers and the attorneys are actually making fun of me 

and saying that I should belong to some sort of FOIA posse and 

perhaps that should even be my band name, which I think is—you 

know, may actually be a cool band name, but the point being that, 

you know, the FOIA cop is not doing its job and not allowing the 

FOIA ombudsman to be the FOIA ombudsman. 

Mrs. LAWRENCE. Before I release my time, Mr. Chair, I just want 

to say, you bring up a good issue. Because if we need to give the 

power to that mediation body, the autonomy and the authority so 

that they can do their job, that’s something we should look at in 

this act. 

Thank you very much. 

Chairman CHAFFETZ. I thank the gentlewoman. 

We’ll now recognize the gentleman from Georgia, Mr. Carter, for 

5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

And thank each of you for being here today. We appreciate you 

taking time out to join us and participate in this. 

Mr. Anderson, I’ve got some questions for you specifically, if it’s 

okay. You mentioned in your testimony that you had, like, a 2–1/ 

2-year battle with over 13 agencies for your FOIA request? Is that 

true? 

Mr. ANDERSON. Yes, sir. I have to say that some of the agencies 

didn’t take part in the battle; they simply retired and didn’t take 

notice. But the Federal judge here appointed a special master— 

which he doesn’t want to look at the things himself, so he gets 

somebody who can do it. 

Mr. CARTER. Right. 

Mr. ANDERSON. And we kept arguing over a progressively smaller and smaller pool of documents. As I would—he would win an 

order, I would get an order from him to say, ‘‘No, you can’t deny 

those documents; give them to him’’—— 

Mr. CARTER. Right. 

Mr. ANDERSON. —and I’d get a couple of boxes. And then the 

next time we’d have another go-around. 

And the significant thing to me was—and I don’t know if this is 

still very common—FOIA has specific requirements for when you 

deny access. You’re not allowed to just say, no, it’s hodgepodge, you 

can’t do that, you can’t have it. You have to specifically justify not 

only each document but each part of the document as to what exemption you’re claiming. 

Mr. CARTER. Right. 


AKING-6430 with DISTILLER
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Mr. ANDERSON. And it took us a year to get them to even give 

that list. Because, universally, when the first replies we got were, 

no, can’t have it, secret, classified, no—— 

Mr. CARTER. Right. Well, let me ask you—— 

Mr. ANDERSON. —they were violating—from the beginning, they 

violated all of the deadlines, they violated the regulations. And all 

that happened was the judge eventually said, you know, give him 

all the documents he wants. 

Mr. CARTER. Okay. Well, did you ever go through the appeals 

process? 

Mr. ANDERSON. Yeah. Absolutely. I—— 

Mr. CARTER. Did you have to do it with all 13 or just a few—— 

Mr. ANDERSON. Yeah. 

Mr. CARTER. —of them? With all 13—— 

Mr. ANDERSON. Yeah. 

Mr.CARTER. —you went through the appeals process. 

Mr. ANDERSON. And some of those appeal processes were simply 

never completed. 

Mr. CARTER. Did a certain agency have a—were the appeals processes consistent among all the agencies—— 

Mr. ANDERSON. No. 

Mr. CARTER. —or were they different? They were different among 

all the agencies? 

Mr. ANDERSON. Yeah. Each of the agencies was different. 

Mr. CARTER. Which one was the most difficult, would you say? 

Mr. ANDERSON. I would say the two was CIA and the NSA. 

Mr. CARTER. Okay. 

Mr. ANDERSON. They both seemed to feel that nothing that they 

handled should be given to the public. 

Mr. CARTER. Well, they must have been very difficult if it went 

on for more than 2 years, 2–1/2 years. 

Mr. ANDERSON. The whole thing took 4 years. 

Mr. CARTER. Wow. 

Do you believe that the appeals process was clear for any of 

these agencies? Do you believe that they had a clear, stated policy 

of what the appeals process was supposed to be? 

Mr. ANDERSON. Yes, sir. I believe the whole process is pretty 

clear. The regulations are clear; the law is clear. 

Mr. CARTER. Was it clear to you about what the process was 

going to be like and what your rights were during the appeals process? 

Mr. ANDERSON. Not at the beginning. I went—you see, I worked 

mostly overseas. I was a foreign correspondent. 

Mr. CARTER. Right. 

Mr. ANDERSON. And there aren’t any other countries that have, 

you know, a Freedom of Information Act that you can file for information on. 

Mr. CARTER. Sure. Sure. 

Mr. ANDERSON. So when I came here and I told the people at the 

Freedom Forum this is what I’m going to do, I actually showed up 

early and said, I want to start these requests now, and I’m due to 

start my fellowship in 3 months, and when I get here, I’ll have replies already from some of these agencies, and I can get started 


AKING-6430 with DISTILLER
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getting to work. And the director just laughed. He said, ‘‘You’ve 

never done one of these before, have you?’’ And I said, ‘‘No, sir.’’ 

Mr. CARTER. Right. 

Mr. ANDERSON. And he said, ‘‘Okay. You’ll learn.’’ 

Mr. CARTER. Well, I don’t know if you’re familiar or if any of the 

panel members are familiar—and don’t know that there would be 

any reason. I have introduced a bill, H.R. 1615, and it is called the 

DHS FOIA Efficiency Act of 2015. And it deals primarily, obviously, with DHS because, as I suspect you know, DHS has the largest backlog of any agency within the Federal Government, and it’s 

something that I’m trying to address through this bill. 

And it requires the chief FOIA officer of DHS to issue updated 

regulations, particularly as it pertains to the appeal process. And 

what I want to ask you is that, although this is obviously specific 

to DHS, do you feel like a standardized process would be beneficial 

throughout all agencies? 

Mr. ANDERSON. I think, yes, it would be beneficial. Making 

things standardized and clear to everybody is always beneficial in 

these—in these things. Yeah. 

Mr. CARTER. And, Ms. Attkisson, would you agree? 

Ms. ATTKISSON. Yes, sir. Any clarity, I think, is always good. But 

I still think it goes back to the heart of the idea, if there are directives or a culture in which they’re being told to find excuses not 

to give material, that may not be, you know—— 

Mr. CARTER. Right. 

Ms. ATTKISSON. —as effective as it should be. 

Mr. CARTER. Well, I would encourage all of you—and I want to 

thank all of you again for participating. I want to encourage you 

to keep an eye out for this because this is something we’re going 

to be pushing very hard, again, H.R. 1615. 

Thank you, Mr. Chairman, and I’ll yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

We’ll now recognize the gentlewoman from the Virgin Islands, 

Ms. Plaskett, for 5 minutes. 

Ms. PLASKETT. Good afternoon. Thank you all so much for the information and your testimony here today. 

Thank you, Mr. Chairman, for the opportunity to speak with 

these witnesses. 

I wanted to talk a little bit about the deliberative process and 

how that works and the timeframe in which it’s allowed. 

As a former Department of Justice official, I’ve sat around at the 

table in the Civil Division in discussions about what would or 

would not be part of a FOIA disclosure, and so it’s very interesting 

for me now to be on this side and having this discussion with you 

about the impediments it creates in terms of transparency and having checks and balances in our government with the press. 

So my understanding, from having worked previously as a prosecutor, is that the exemption covers information that would normally be privileged in the context of civil discovery. And the tenet 

is that it’s supposed to allow the attorneys the process and the ability to be able to have conversations and to begin deliberation and 

investigations. 

Mr. McCraw, would you agree that that is the basic tenet and 

what it’s supposed to do? 


AKING-6430 with DISTILLER
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Mr. MCCRAW. You’ve described it well. 

Ms. PLASKETT. Okay. 

Now, the exemption is described, ‘‘To safeguard the government’s 

deliberative policymaking, the exemption encourages frank discussion of policy matters between agency officials by allowing supporting documents to be withheld from public disclosure.’’ And 

that’s in the ‘‘Citizens Guide to FOIA’’ published by this committee 

in 2012. 

Does that sound right to everyone in this committee, that that’s 

the purpose of it? And that it’s supposed to be limited to an exemption for up to 25 years. 

Mr. Leopold, what do you think about that 25-year timeframe in 

which those documents could be withheld? 

Mr. LEOPOLD. Well, in terms of withholding them permanently? 

Or—— 

Ms. PLASKETT. Well, I mean, the rationale is that—— 

Mr. LEOPOLD. —saying sunset? 

Ms. PLASKETT. Right. There’s a limited amount of time that the 

agency is allowed to keep this information, and that’s 25 years that 

they’re supposed to be able to withhold it. 

Mr. LEOPOLD. I’d like it tomorrow. So, I mean, whether—— 

Ms. PLASKETT. But do you agree that there is some information 

that may be—— 

Mr. LEOPOLD. Sure. 

Ms. PLASKETT. —and to allow the attorneys to engage in proper 

investigation, that they should be withheld for a time period? 

Mr. LEOPOLD. Yes, I agree that, when properly used, when Exemption 5 is properly applied, yes, that it should—that the information should be withheld. 

Ms. PLASKETT. And who do you think would be the appropriate 

persons or person or agency to police that properly? 

Mr. LEOPOLD. I think the Office of Information Policy. I mean, 

they are the—you’re going to have Melanie Pustay here tomorrow, 

and I’m going to be back there listening. 

Ms. PLASKETT. Are you going to be holding up stuff, questions for 

us, so you can prompt us with what you think? 

Mr. LEOPOLD. If you send me your email address, I’ll send you 

a long list of questions. 

Ms. PLASKETT. Okay. Great. 

Mr. LEOPOLD. One of them being, how come she has yet to—her 

office—turn over my request for emails that actually mention 

FOIA? I asked 2 years ago for emails that mention FOIA and 

haven’t seen those yet. 

To answer your question, I think that the Office of Information 

Policy—in fact, I don’t think; they are the ones that are supposed 

to ensure that, you know, these agencies are adhering to, as I said, 

Attorney General—former Attorney General Eric Holder’s guidelines. 

Ms. PLASKETT. Now, you know, my understanding is, particularly 

from the freedom-of-information side and from the press side, that 

this is—most things are so subjective. So determining what should 

fit within this and what should not can lead to broad redactions. 


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And, Ms. Attkisson, you talked about that, that this can be, you 

know, so broad—used with a broad stroke that you have complete 

black pages in FOIA requests. 

You used the term ‘‘withhold it because you want to’’ exemption. 

Can you talk a little bit more about that? 

Ms. ATTKISSON. You discuss the context of privilege, maybe sort 

of an attorney-client privilege, but the example I used today and 

many examples I have are emails to a huge group of civilians, nonlawyers, who have emailed one another information about the 

public’s business. Sometimes there are 50 people on the email, and 

they can all know about the public’s business, and yet we are to 

not. And these are public officials being paid our money. 

And I think it’s very hard to justify just thousands and thousands of pages of these types of redactions. It’s hard to know what’s 

in them since they’ve redacted them, but it’s pretty clear, when you 

see the pattern, that the redactions are so broad that they can’t 

possibly apply to a narrow sort of attorney-client privilege, at least 

in those cases. 

Ms. PLASKETT. So, Mr. McCraw, would you agree—— 

Chairman CHAFFETZ. Thank—— 

Ms. PLASKETT. Okay. I see my time—— 

Chairman CHAFFETZ. My apologies. We have a second panel 

that’s still yet to come, and we’re trying—we also have votes that 

will come up, so I’m going to need to enforce the time here. 

And we’ll now recognize the gentleman from Alabama, Mr. Palmer, for 5 minutes. 

Mr. PALMER. Thank you, Mr. Chairman. 

The last question Mr. Carter asked Ms. Attkisson was whether 

or not you thought it would be beneficial to have some standard 

practice for requiring compliance with these requests, and you said 

yes. 

And then you, to paraphrase you, you added this little caveat, 

unless there is a culture that exists to the contrary—a culture, as 

I interpret it, to avoid compliance. Is that an accurate assessment 

of what you said? 

Ms. ATTKISSON. Yes, sir. I think it’s akin to, you know, the Titanic is sinking and somebody saying, ‘‘Quick, hurry and rearrange 

the deck chairs.’’ That won’t make much difference in the big picture if the problem that’s causing—or the big issue that’s causing 

the problem isn’t addressed. 

Mr. PALMER. Okay. 

Ms. Attkisson, Mr. Leopold, Ms. Goodman, you’re all investigative reporters. 

Mr. McCraw, I assume that in your role as vice president and 

general counsel you have some idea about investigative reporting. 

You all have expressed your frustration in your investigations of 

various Federal agencies in regard to the failure to comply with 

FOIA requests. Have any of you investigated or considered investigating FOIA violations? 

And you can answer ‘‘yes’’ or ‘‘no.’’ 

Ms. ATTKISSON. Yes, sir. 

Mr. PALMER. You have? Good. 

Ms. ATTKISSON. I’ve considered and I’ve done some of it—— 

Mr. PALMER. Okay. 


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Ms. ATTKISSON. —yes, sir. 

Mr. LEOPOLD. I not only have investigated it, I have written 

about it—— 

Mr. PALMER. All right. 

Mr. LEOPOLD. —extensively. 

Mr. MCCRAW. Like Mr. Leopold, we have FOIA’d the FOIA 

record to see how a prior request was being done. 

Mr. PALMER. Okay. Good. 

And in doing this, then, are you aware of any Federal agency 

being proactive and training employees on methods or tactics for 

avoiding compliance with FOIA requests? 

Mr. LEOPOLD. I noted in my written testimony and my opening 

statement that the Pentagon has a policy in which FOIA requests 

that are deemed significant requests get department-level review. 

In other words, the process is politicized. 

Mr. PALMER. Okay. Let me be clear. How about a Federal agency 

actually conducting a session to train your employees how to work 

with nongovernment groups so as to do government business outside official government infrastructure and communications channels? 

We had a hearing in the Science Committee back in March, and 

one of the witnesses who testified is a former EPA employee, David 

Schnare, and he brought this up. And I have a copy of his testimony. I have it here. 

And he talked about the EPA prepared an 83-page PowerPoint 

presentation on how to use electronic tools to collaborate with external partners. ‘‘This presentation encourages use of instant messaging, other realtime correspondence tools, and even encourages 

using AOL and Yahoo and asking third parties to set up chat 

rooms.’’ 

He went on to say, ‘‘But this presentation also documents the 

culture,’’ Ms. Attkisson, ‘‘of disregard for agency duties under public regards and FOIA requirements. It characterizes FOIA and 

NARA rules as Federal laws that constrain Federal administration 

of public-facing Web collaboration tools.’’ 

I have a printed copy of the PowerPoint here. 

He says, ‘‘The next section of the presentation describes creative 

solutions to dealing with Federal constraints.’’ And here are the 

Federal constraints that they’ve mentioned: National Archives and 

Records Administration, Federal Advisory Committee Act, Paperwork Reduction Act, National Institute of Standards and Technology, and others. 

He says that, specifically, EPA encourages its employees to help 

outside parties to sponsor the Web-based collaboration tools, noting 

that, as long as we are only participants, not administrators of a 

Web collaboration site, the site is not limited by those same FOIA 

and Public Records Act constraints. 

How would you respond to that, Mr. Leopold? 

Mr. LEOPOLD. You’ll have to forgive me, but I am completely confused about that. I’m not quite sure what he’s—you know, what 

he’s saying there. So I’m not well informed about this idea and proposal. 

Mr. PALMER. Ms. Attkisson is eager to respond, so go ahead. 


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Ms. ATTKISSON. Well, I understand what you’re saying, sir. And 

I think—and I cut it from my verbal testimony for time, but there 

are new tactics. Even if FOIA is shored up, we’ve already seen that 

agencies—and I’ve written some on this—and officials instructs 

subordinatesto not put things in emails, to use instant messaging. 

Sometimes they use private service, private emails, pseudonyms, 

friends’ accounts, and all kinds of other ways that even this problem wouldn’t solve. 

Mr. PALMER. That are not subject to a FOIA request—— 

Ms. ATTKISSON. Yes, sir. 

Mr. PALMER. —or any other public records request. 

I think—what I’m saying here, Mr. Chairman, if I may, is that 

you have a former EPA employee who, in testimony, sworn testimony, just in March, talked about what I consider a conspiratorial 

effort to avoid complying with Federal records. 

Thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

We’ll now recognize the gentleman from Virginia, Mr. Connolly, 

for 5 minutes. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

I come from a State, Virginia, where FOIA laws are actually very 

strict. I don’t know how many of my colleagues on this committee 

actually were ever subject to FOIA. I come from local government, 

and I can tell you, in Virginia, my phone log was subject to FOIA, 

my schedule was subject to FOIA, my working documents were 

subject to FOIA, my files were subject to FOIA. And the county attorney was very strict about it, that, you know, you had 5 working 

days in which to respond. You know, if it was too much, we might 

ask the requester to help defray the cost of duplication, copying. 

But—there weren’t really electronic files back then, but—so I’m 

used to a culture of very strict adherence to FOIA. We didn’t engage in redaction or big exemptions. There were some exemptions 

involving privileged legal matters or personnel matters, but that 

was it. So, coming to the Federal Government, I’m somewhat surprised at this tension in how we implement FOIA. 

If we step back, though, Mr. McCraw, the First Amendment 

guarantees a free press; is that correct? 

Mr. MCCRAW. That is. 

Mr. CONNOLLY. Is it not also correct, however, that the First 

Amendment fails in any way to enumerate the right of a free press 

to access to government documents? 

Mr. MCCRAW. It is not in the text, that’s correct. 

Mr. CONNOLLY. Correct. 

So, by virtue of adoption of the First Amendment, we also set up, 

whether we intended it or not, a dialectic. You want access to information, and there are some people who want to limit that or don’t 

want you to have access to information. Fair enough? 

Mr. MCCRAW. That is true. 

Mr. CONNOLLY. So what we’re debating here are what are the 

rules of the road. 

Now, many of us, including the chairman of this committee, 

based on what he said, and certainly myself, believe freer access 

is better. The default should always be: Get it out before the public; 


AKING-6430 with DISTILLER
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let’s see where the chips fall. But, I mean, there are some exemptions. 

And what I’ve heard here is an enumeration of, in a sense, bureaucratic obfuscation, using the technicalities of the law either 

with a (b)(5) exemption or redaction or not meeting deadlines in 

any kind of strict fashion and even saying, ‘‘Your scope is so broad, 

we can’t possibly respond to it,’’ which sometimes, by the way—I’ve 

been subject to press FOIAs that were overly broad, that were impossible to respond to, and we had to negotiate with that reporter, 

‘‘Get it down, tell us what you’re really looking for, and we’ll try 

to respond.’’ 

So I take the points you make. 

And, Mr. Leopold, you said there ought to be penalties in whatever legislation we consider so that there’s an incentive to comply 

rather than an incentive, as Ms. Attkisson ably put it, not to comply. Would you make those civil or criminal or both, in terms of 

penalties? 

Mr. LEOPOLD. If I were king, I would make them both. I mean, 

there are—you know, there are numerous instances in which, you 

know, I’ve been in court and the government has outright lied 

about certain records, about whether they possess certain records, 

whether they’ll process certain records. It’s become, you know, very 

clear. So, yeah, I would make it both. 

Mr. CONNOLLY. Okay. 

I just want to reiterate, though, the First Amendment kind of 

sets up this competition. And, you know, I’m more on your side 

than the other side on the competition, but there’s not an absolute 

right guaranteed to access to any information. 

Mr. LEOPOLD. No, there isn’t, but I have the right to ask every 

Federal agency to give me every record that they have. They don’t 

have to do that, and they have made it crystal-clear that they’re 

not going to, but the law is clear. 

Mr. CONNOLLY. Well, that’s what I was—— 

Mr. LEOPOLD. The Freedom of—— 

Mr. CONNOLLY. That’s what I was going to—— 

Mr. LEOPOLD. —Information Act is the law, and the law—— 

Mr. CONNOLLY. Mr. Leopold—— 

Mr. LEOPOLD. —is clear. 

Mr. CONNOLLY. —that’s what I was going to get at. 

So, to try to clarify the First Amendment, laws get adopted; 

FOIA law is one of them. And it’s an imperfect vehicle, but it’s one 

that needs to be perfected. And that’s certainly a conclusion I draw 

after listening to your testimony. 

It works sometimes. It doesn’t work perfectly. And, at other 

times, there’s outright obfuscation, and that needs to be addressed. 

And it’s not unique to this administration, but, since we’re in this 

administration, we need to deal with it, as well. 

I thank the chair for the time, and I thank all of the panelists 

for being here today. It’s a very illuminating conversation. 

Chairman CHAFFETZ. I thank the gentleman. 

We’ll now recognize the gentleman from Ohio, Mr. Jordan, for 5 

minutes. 

Mr. JORDAN. Thank you, Mr. Chairman. 


AKING-6430 with DISTILLER
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Mr. Leopold, has it gotten—I may cover some ground that’s already been covered—has it gotten worse? FOIA requests and requests for information, has it been more difficult for you to get the 

information you’ve requested? 

Mr. LEOPOLD. It is. It’s getting increasingly worse with the passage of years. 

Mr. JORDAN. And more redactions than you ever used to see? 

Mr. LEOPOLD. Yes. I mean, the more I request, the more records 

I request—— 

Mr. JORDAN. More deliberative process exemptions than you’ve 

ever seen before? 

Mr. LEOPOLD. Oh, that, there’s no question. I mean—— 

Mr. JORDAN. More other exemptions that apply for certain agencies than you’ve ever seen before? 

Mr. LEOPOLD. I definitely would say (b)(7)(A) at FBI is overused. 

Mr. JORDAN. Is this the first time that you’ve testified in front 

of Congress? 

Mr. LEOPOLD. It is. 

Mr. JORDAN. So first time on any issue and certainly the first 

time on this issue? 

Mr. LEOPOLD. First time on any issue. Probably the last time, as 

well. 

Mr. JORDAN. Understand. Understand. Which tells me something, on both ends. 

Mr. LEOPOLD. Yeah. 

Mr. JORDAN. And, Ms. Attkisson, is this the first time you’ve testified in front of Congress? 

Ms. ATTKISSON. I testified on some similar issues on the Senate 

side not long ago, and these are both very much the first—— 

Mr. JORDAN. But—so this—was that this year? 

Ms. ATTKISSON. Yes, sir. 

Mr. JORDAN. Okay. So never before—— 

Ms. ATTKISSON. No, sir. 

Mr. JORDAN. —the present? Okay. 

Mr. McCraw, first time you’ve testified? 

Mr. MCCRAW. It is. 

Mr. JORDAN. And you’ve been in journalism a year or two? 

Not—— 

Mr. MCCRAW. That is so. 

Mr. JORDAN. You look young. I’m not saying—insinuating that. 

I understand. 

Ms. Goodman, you referenced—— 

Mr. MCCRAW. Thank you for putting that on the record. 

Mr. JORDAN. —that in your testimony? 

Mr. MCCRAW. Sir, could I just address the question, though—— 

Mr. JORDAN. Sure. 

Mr. MCCRAW. —that you raised? I don’t think it’s gotten worse. 

I remember very well what it was like when I started doing this 

regularly—— 

Mr. JORDAN. But, still, the first you’ve been willing to come talk 

about it. 

Mr. MCCRAW. First time I’ve been asked. 

Mr. JORDAN. Okay. 

Ms. Goodman? 


AKING-6430 with DISTILLER
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Ms. GOODMAN. Yes. 

Mr. JORDAN. First time. 

Mr. Anderson? 

Mr. ANDERSON. No. I’ve been before Congress—— 

Mr. JORDAN. On this issue? 

Mr. ANDERSON. —Senate committee, which was discussing the 

use of journalistic cover by the CIA and was holding—— 

Mr. JORDAN. But it’s the first time you’ve testified on FOIA? 

Mr. ANDERSON. Yes, sir. 

Mr. JORDAN. Okay. 

I mean, that should—this is sort of where Mr. Mulvaney was 

earlier—that should tell us something. When the press has to come 

testify about restrictions on the press, that’s pretty important. I 

mean, that’s why this is sort of unprecedented that you’re all here. 

And I think, Ms. Goodman, I didn’t catch most people’s opening 

statement, but I caught part of yours. 

So it brings us back to the fundamental question: Why? Why has 

it gotten worse? Why is it to a point where you think you now— 

why are we at this point? What’s causing the delays, the exemptions, the redactions? What ultimately compelled you all to come 

here? What’s the cause of it all? 

Mr. Leopold, can you give me an answer to that? Because I’ve got 

an idea and I’ll be happy to give it, but I’d rather hear what you 

all say here, at least first. 

Mr. LEOPOLD. I came to Congress—or came here today because 

I was asked to testify. I think this is a really important issue. I 

use FOIA aggressively. The public benefits when—— 

Mr. JORDAN. No, no, no, not, not—you misunderstood me. I want 

to go back to the question of why you’re having the—why is the 

problem getting worse, why are the redactions so much, why are 

the exceptions so much—— 

Mr. LEOPOLD. Yes, I was—— 

Mr. JORDAN. —the deliberative process. 

Mr. LEOPOLD. I was just answering—— 

Mr. JORDAN. Go ahead. 

Mr. LEOPOLD. —the last part of your question. 

I mean, why are they getting worse? I don’t know. As I indicated, 

I filed for processing notes, and that gives me insight as to how 

these agencies handle FOIA requests, what goes on behind the 

scenes. What I see is an increasing use of exemptions to withhold 

information that the government may feel—— 

Mr. JORDAN. Well, let me go right—I’ve got a minute. Sorry. Let 

me go right to this. 

Mr. LEOPOLD. Okay. 

Mr. JORDAN. And I’ll stick with you, Mr. Leopold. 

Has it increased under the Obama administration? Has it increased since we got this—this—the email, the letter that Mr. 

Craig, the White House Counsel, wrote to all of the general counsels at the respective agencies in the Federal Government? 

Mr. LEOPOLD. I would say, my experience, it has increased. Let 

me just add—— 

Mr. JORDAN. I would think it would—— 

Mr. LEOPOLD. —the difference between this administration and 

the last administration is that this administration signed an execuVerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL

AKING-6430 with DISTILLER
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tive order promising a new era of transparency and open government. 

Mr. JORDAN. And it’s—— 

Mr. LEOPOLD. During the Bush years, I knew I wasn’t getting 

anything. 

Mr. JORDAN. Yeah. But that’s not my question. That may be 

true—— 

Mr. LEOPOLD. That—that—I just want to make that statement. 

Mr. JORDAN. —but I want to go back to what you said earlier. 

You said it’s gotten worse. 

Mr. LEOPOLD. I believe it has gotten worse over the years—— 

Mr. JORDAN. It’s gotten worse since April 15, tax day, 2009, the 

first year of Obama’s presidency, right, since this went out? 

Mr. LEOPOLD. I’ve been filing aggressively FOIA requests for the 

past 5 years—— 

Mr. JORDAN. When the White House Counsel says all document 

requests that may involve documents with White House equities, 

that’s everything. I mean, you talk about a chilling impact that’s 

going to have on general counsels in Federal agencies. When they 

say all that have any White House interest associated with them, 

that’s pretty broad. And, as Mr. Mulvaney pointed out, that’s a lot 

broader than the 1988 deal that—whoever was counsel when President Reagan was President. That would scare you. 

To me, this is as obvious as it gets. The White House General 

Counsel tells all the general counsels at every respective—at every 

Federal agency, ‘‘Hey, hey, hey, before you send anything, check 

with us,’’ of course they are going to redact everything. They’re 

scared to death. I mean, we talk about the chilling effect in government all the time. It doesn’t get any more chilling than that if 

you’re a bureaucrat in the Federal agencies trying to comply with 

all your requests. 

And it’s that reason that made it so bad that, for the first time 

in all your careers, you said, you know what, I’m going to go talk 

about—the press has to testify because of these restrictions placed 

on the press. That is huge. 

Mr. LEOPOLD. You can be sure that I’ll be FOIA’ing that to find 

out what’s going on behind the scenes. 

Mr. JORDAN. I appreciate it. 

Thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

And I think we’ve allowed each member to ask their questions. 

We have a second panel. And so we, first and foremost, want to 

thank this panel for your time and your expertise and your candidness in sharing your perspective. We thank you again for your participation here. 

The committee is going to recess for about 4 minutes while we 

reset the table and get ready for our second panel. 

But thank you again. 

We stand in recess for about 4 minutes. 

[Recess.] 

Chairman CHAFFETZ. The committee will come to order. We have 

a second panel in our discussion today about FOIA. Let me introduce the second panel, then we’ll swear you in and begin your testimony. 


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Tom Fitton is the president of Judicial Watch, the public interest 

group that investigates and prosecutes government corruption. As 

president of Judicial Watch since 1998 with nearly 25 years experience in public policy, Mr. Fitton has helped turn Judicial Watch 

into one of America’s largest and most effective government watchdog organizations. Mr. Fitton is the author of the New York Times 

bestseller ‘‘The Corruption Chronicles’’ and the executive producer 

of a documentary movie, ‘‘District of Corruption.’’ 

In 2015, the American Conservative Union, the ACU, awarded 

Fitton with the Defender of the Constitution award during its annual Conservative Political Action Conference, also known as 

CPAC. 

Cleta Mitchell is a partner and political law attorney in the 

Washington, D.C., office of Foley Lardner LLP and a member of the 

firm’s political law practice. With more than 40 years of experience 

in law, politics, and public policy, Ms. Mitchell advises nonprofit 

issue organizations, corporations, candidates, campaigns, and individuals on state and Federal campaign finance law, election law, 

and compliance issues related to lobbying, ethics, and financial disclosures. 

She practices before the Federal Election Commission, the Ethics 

Committees of the United States House and Senate, and similar 

state and local enforcement bodies and agencies. She has served as 

legal counsel of the National Republican Senatorial Committee and 

the National Republican Congressional Committee. 

Nate Jones is the director of the Freedom of Information Act 

Project for the National Security Archive. He oversees thousands of 

Freedom of Information Act, or FOIA, and mandatory declassification reviews, also known as MDRs, requests, and the hundreds of 

FOIA and MDR appeals that the Archive submits each year. 

An active member of the American Society of Access Professionals, the professional association of government FOIA officers, 

he acts as the liaison between the Archive analysts and agency 

FOIA officers and serves as the Archive’s FOIA counselor to the 

public. He’s the editor of the Archive’s blog Unredacted, where we 

writes about newly declassified documents and FOIA policy. 

He has authored the Archive’s past five government-wide FOIA 

audits, including the 2015 eFOIA audit, ‘‘Most Agencies Falling 

Short on Mandate for Online Records.’’ 

Ms. Garcia, Lisette Garcia, is the founder of the FOIA Resource 

Center. Founded in 2013, the FOIA Resource Center’s mission is to 

put the most salient public records of the day quickly and cost effectively in the hands of the most immediately impacted. 

Ms. Garcia is celebrating the first anniversary of her firm, where 

she works to wrest government documents from a reluctant bureaucracy using the Freedom of Information Act. Her clients are 

often lawmakers, trade groups, journalists, whose ranks once included her. She moved to Washington to attend Howard University 

School of Law and graduated in 2008. 

Gabe Rottman is the legislative counsel and policy advisor in the 

Washington Legislative Office of the American Civil Liberties 

Union, often referred to as the ACLU. He advocates in Congress 

and the Federal agencies on an array of issues in the intersection 

of technology and civil liberties, including privacy, cybersecurity, 


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free expression, telecommunications and Internet policy, government transparency, as well as intellectual property. 

Mr. Rottman practiced law from 2007 to 2012 at Simpson 

Thatcher & Bartlett LLP in Washington, D.C., with a focus on antitrust and foreign investment review. From 2001 to 2005 he worked 

in the ACLU’s Washington Legislative Office as a communication 

staffer and senior writer. 

And finally we have Anne Weismann, who’s the executive director for the Campaign for Accountability, a new nonprofit that uses 

research, litigation, and communication to expose misconduct and 

malfeasance in public life. 

She served for 10 years as the chief counsel for the Citizens for 

Responsibility and Ethics in Washington. She worked for the Federal Communications Commission as the deputy chief of the Enforcement Bureau. She also worked for the Department of Justice 

as the assistant branch director, where she supervised government 

information litigation, including FOIA. 

We appreciate you all being here today. We’ve had a good, robust 

discussion with our first panel, and we welcome you to this discussion as well. 

Pursuant to committee rules, all witnesses are to be sworn before 

they testify. If you would please rise and raise your right hand. 

Do you solemnly swear or affirm that you will tell the truth, the 

whole truth, and nothing but the truth? 

Let the record reflect that all witnesses answered in the affirmative. And as they now take their seats, I would encourage you, in 

order to allow time for discussion, to please limit your testimony 

to 5 minutes as best you can. Your entire written statement will 

be entered into the record. And as members have votes coming up 

on the floor, there may be submissions from Congress that we 

would appreciate if you would follow back up on. 

Chairman CHAFFETZ. But with that, we will start with our first 

witness, Mr. Fitton of Judicial Watch. 

And we thank you, sir, for being here, and we now recognize you 

for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF TOM FITTON 

Mr. FITTON. Thank you, Mr. Chairman, for allowing me to testify 

on behalf of Judicial Watch. 

Transparency is an important issue to the American people. 

We’re a conservative group, but we are nonpartisan, and we have 

over 360,000 active supporters. And there are few more widely supported groups in the country than Judicial Watch. 

And, obviously, our focus is on the Freedom of Information Act. 

We’re the most active requester, most active litigator without a 

doubt today, and we’ve used the open records laws to root out corruption in the Clinton administration and to take on the Bush administration’s penchant for improper secrecy. You may recall we 

sued the administration of President Bush all the way up to the 

Supreme Court over the Cheney Energy Task Force. 

We’ve been around for 21 years, but I can tell you our government is bigger than ever, and it’s, frankly, the most secretive in reVerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL

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cent history. President Obama promised the most transparent administration in history, but Federal agencies are often black holes 

in terms of disclosure. 

We have filed nearly 3,000 Freedom of Information Act requests 

with the Obama administration, and our staff attorneys have been 

forced to file around 225 lawsuits in Federal court against this administration. Overwhelmingly, these lawsuits are just designed to 

get a yes or no answer from the administration. 

Administratively, agencies have built additional hurdles and 

stonewalled even the most basic FOIA requests. The Obama administration’s casual law breaking, and it is law breaking, when it 

comes to FOIA is a national disgrace and shows contempt for the 

American people’s right to know what their government is doing. 

Thomas Jefferson, the Founding Fathers all thought transparency was important. Jefferson said if we are to guard against 

ignorance and remain free it is the responsibility of every American 

to be informed. And FOIA increasingly is not working in that regard. 

Transparency is about self-government. If we don’t know what 

the government is doing, how is that self-government? Frankly, 

how is it even a republic? 

Now, we have this transparency crisis here in Washington, D.C. 

The government’s doing more than ever, but is even less transparent. Never in our history has so much money been spent with 

so little accountability. Frankly, all of Congress should focus on 

government reform and oversight instead of assigning it to just one 

or two committees. 

Americans are rightly worried that they’re losing their country. 

We have the forms of democracy—elections, campaigns, votes, political fundraising, ads—but when Congress authorizes a trillion-anda-half dollars in spending after just 3 days of debate and when the 

executive branch won’t tell you much unless you’re willing to make 

a Federal court case out of an issue, frankly, that isn’t democracy 

and it certainly isn’t self-government. 

Mr. FITTON. But FOIA shows that there is a way forward out of 

this transparency crisis. And it’s a corruption crisis, as well. We’ve 

shown that one citizen group, using the FOIA, an independent 

oversight, can help the American people bring their government 

back down to earth and under control. And Judicial Watch obviously has succeeded in uncovering documents that have been denied to Congress. 

On Benghazi, it’s been over a little over a year since Judicial 

Watch uncovered a declassified email showing that then-White 

House Deputy Strategic Communications Advisor Ben Rhodes and 

other Obama administration officials, not intelligence officials, put 

out the talking points used by Susan Rice that—the big lie, that 

the Benghazi attack was rooted in Internet video and not a failure 

of policy. Now there’s a select committee because of those disclosures. The select committee, to put it charitably, doesn’t seem to 

be getting much of anywhere, and Judicial Watch’s litigation continues to be the go-to place for information about what’s going on 

in the Benghazi scandal. 

The IRS scandal. Judicial Watch litigation forced the agency to 

admit that Lois Lerner’s emails were supposedly lost, and it was 


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Judicial Watch’s litigation that forced the IRS to admit that her 

emails were not actually lost. 

And only Judicial Watch uncovered the troubling revelation that 

the Obama, IRS, and Justice Department were collaborating on 

prosecuting the same groups that the IRS had lawlessly suppressed. 

We’re still getting screwed around by the IRS. We just filed today 

a filing that the IRS—updating the court on the IRS’ machinations 

with Lois Lerner’s lost emails. They told us there were no tapes. 

It turns out there were tapes. They made us go through all sorts 

of hoops to figure out where the lost emails might be. They made 

the court go through all sorts of hoops. And then it turns out that 

the Treasury Inspector General had this information and had these 

tapes. They had turned over those tapes 1 day after they’d been requested, the IRS to TIGTA. They didn’t tell us that. And they made 

us go through this fight with them over where these lost emails 

would be. They knew where they were. 

And then, once TIGTA found the emails that were lost, IRS said, 

‘‘Well, they’re not subject to FOIA. They’re TIGTA’s records, not the 

IRS’ records.’’ Then, a few weeks ago, they said, ‘‘Oh, we’ve got 

some emails from TIGTA, so now they’re our records, and we’ll get 

to them when we get to them.’’ Really outrageous conduct. 

And then, of course, we have the most egregious violation of Federal transparency law since FOIA was passed 50 years ago, and 

that is Mrs. Clinton’s use of a secret email account to avoid disclosure under the Federal Records Act, to avoid disclosure under 

FOIA. And when you have the State Department agency tell Judicial Watch they looked for records and they couldn’t find anything 

and groups like Judicial Watch end their lawsuits based on no 

records being found, that was a lie. They didn’t look for the records. 

Mrs. Clinton was head of the agency, and she had a legal responsibility to maintain those records. And there is criminal liability already for failure to maintain those records. It’s called concealment. 

You can’t conceal records. You can’t take them away if they’re Federal records, and that was what Mrs. Clinton did. And there is a 

longstanding law that prohibits that, and, certainly, in the least, 

that should be subject to criminal investigation independently. 

And I’ll just finally close. Obviously, Congress is not subject to 

FOIA. It ought to be. The courts aren’t subject to FOIA. They ought 

to be. But the problem is the executive branch is avoiding FOIA. 

FOIA reform is important, and we support serious, impactful legislation. And we encourage you to keep on working on that, and we’ll 

work with you as appropriate. 

Thank you for your time. 

[prepared statement of Mr. Fitton follows:] 


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Chairman CHAFFETZ. I thank the gentleman. 

Ms. Mitchell, you are now recognized for 5 minutes. 

STATEMENT OF CLETA MITCHELL 

Ms. MITCHELL. Thank you, Mr. Chairman, members of the committee. Thank you for having a hearing on this really important 

topic. 

I have in my testimony explained my experiences with FOIA 

with a number of my clients over the past several years, nonprofit 

grassroots citizen groups. I want to focus today on just one of those 

experiences, and that is with the IRS and Treasury on behalf of the 

Tea Party Patriots. 

When the IRS and Treasury issued its 501(c)(4) regulations 

which would restrict and allow the IRS to govern free speech and 

political activities of 501(c)(4) organizations, regulations that were 

developed in secret, that were not included on the plan for rulemaking that all Federal agencies are supposed to publish regularly, 

and were released the day after Thanksgiving, on Black Friday, 

November 2013, we wanted information about where do these regulations come from, what were they about, how were they developed. 

So, on behalf of Tea Party Patriots, in early December 2013, we 

filed FOIA requests with the IRS and Treasury seeking information 

and the documents related to the development of the regulations. 

The Department of Treasury wrote back and said, ‘‘We’re going 

to invoke our 15-day automatic extension.’’ And that was all we 

ever heard from the Treasury Department until we sued them. 

The IRS wrote back and said, ‘‘We’re invoking our 15-day extension, but we’re not going to be able to answer within the statutory 

period. We’ll answer your FOIA requests April the 7th of 2014.’’ 

April the 7th, I get a letter saying, ‘‘We’re not going to be able to 

answer your FOIA request as we promised. You’ll need to give us 

until July the 2nd.’’ 

So I called the woman who sent the letter and said, ‘‘Tell me 

what the progress is, how are we doing,’’ at which point she said, 

‘‘Well, you know, I process the request, and I send them to the appropriate people within the agency, and then I don’t ever hear anything back.’’ I said, ‘‘You’ve never heard anything back?’’ She said, 

‘‘No.’’ I said, ‘‘Well, how did you come up with these dates?’’ She 

said, ‘‘Well, I was estimating.’’ I said, ‘‘So you made them up.’’ She 

said, ‘‘Basically.’’ 

So, 1 week later, we filed a lawsuit in Federal court here in D.C., 

a FOIA appeal. And we reached an agreement with the Department of Justice where they would provide monthly rolling productions from the IRS and Treasury. 

And I have brought the binders with me, if you would like to see 

them. And this is the most recent—these are the most recent production, which I got yesterday—day before yesterday. It is page— 

you can’t see it—page after page of documents that are either totally or partially redacted. 

This, ladies and gentlemen, this is the deliberative process privilege in action. We have not received one substantive document in 

all of these binders. We have received—we finally—we did agree 

with the Justice Department that they would produce a Vaughn 

index, which is like a privilege log. So we do have a list of thouVerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL

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sands of pages of documents they haven’t produced at all. And the 

pages they have produced are either totally blacked out or partially 

blacked out such that all significant information is removed. 

So what we have really, effectively, learned is that the deliberative process privilege has completely subverted and destroyed the 

purpose of FOIA. And the Tea Party Patriots have spent tens of 

thousands of dollars just to try to understand regulations—which 

were withdrawn, so I have a question as to why the deliberative 

process privilege would still apply to regulations that have been 

withdrawn. But we now know they’re still working on reviewing 

them. But we’re asking about the last set. 

But the point is this: We have spent—my client has spent tens 

of thousands of dollars, we’ve spent many, many hours trying to 

get information to which we are entitled, and all we’ve gotten are 

these binders full of redacted documents. 

And so I have this to say, which is that FOIA is completely broken. What has happened is the courts and the agencies have rendered it essentially meaningless. And so I have three recommendations. 

Number one, this legislation that is pending in the House and 

the companion bill in the Senate needs to have one provision 

added. Congress should eliminate the deliberative process privilege. 

It is the deliberations of the agencies and the process by which the 

decisions are made that the people have a right to know about. 

That’s the basic information that we seek. And so Congress should 

eliminate by statute, just X out the deliberative process privilege. 

And, number two, I also recommend that there have to be penalties that are imposed for individual government employees and 

agency heads who fail to comply with FOIA. 

And, number three, Congress should take all of the money—I’ve 

heard the conversation about, well, you know, we’ve cut their budgets and all. Let me tell you, this took a lot of extra work. It 

would’ve been a lot less expensive for the IRS and Treasury to just 

copy the documents and send them to us, but going through and 

redacting takes a lot of extra processing time. 

But I would say this: Congress should go through every Federal 

agency and take the money that is now spent, the tens of millions 

of dollars now being spent for the public affairs offices, who put out 

press releases, who tell us propaganda, whether it’s true or not, 

that they want us to know, and reallocate all of those funds to 

FOIA processing. 

And then I think Congress should keep a scorecard and should 

know how agencies are doing in terms of responding to FOIA and 

should take that into account at appropriations time. 

So I would say this: Only Congress can fix FOIA. Nobody else 

can fix it. Congress needs to revive FOIA, to bring life back into 

the system, and to make it the transparency act that it was intended to be almost 50 years ago. 

Thank you for this opportunity to testify. 

[Prepared statement of Ms. Mitchell follows:] 


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Chairman CHAFFETZ. Thank you. 

Mr. Jones, you’re now recognized for 5 minutes. 

STATEMENT OF NATE JONES 

Mr. JONES. Mr. Chairman, distinguished members of the committee, thank you very much for this opportunity. 

At the National Security Archive, we have filed more than 50,000 

FOIA requests, conducted 14 government-wide FOIA audits that 

have displayed the inner workings, or nonworkings, of over 250 

FOIA shops. Our White House email lawsuits against every President from Reagan to Obama have saved hundreds of millions of 

messages and set a standard for digital preservation that the rest 

of government has not yet achieved. 

The key point I’d like to convey to you today is that the tremendous promise of the Freedom of Information Act, a tool that citizens can use to efficiently and effectively gain access to records produced by the government, has not been fulfilled. Unlike some in 

the previous panels or others, I wouldn’t say it’s broken. One need 

only look to the National Security Archive’s Web site and see the 

millions of pages of documents we’ve got declassified that have rewritten history and helped write policy, or look at Jason Leopold’s 

scoops. But the act has certainly not fulfilled its promise. 

So today I’d like to present three of the largest barriers to FOIA 

requesters and how I believe the committee’s legislation—thank 

you for already passing—will already help these barriers. 

But before I begin on barriers, I have to note that there actually 

are dozens of exemplary FOIA agencies and hundreds of star FOIA 

professionals who really do have transparency in their bones and 

placed the requirements of the FOIA above bureaucratic concerns 

and fear of government—and fear of embarrassment. Excuse me. 

To these agencies and FOIA specialists, thank you. I guess, in this 

case, the reward for competence is inconspicuousness. 

But back to barriers. The first negative interaction a FOIA requester experiences with an agency is over fees, because many 

agencies have adopted a strategy of using the specter of high FOIA 

fees to deter people from making legitimate requests. 

This practice is fiscally unnecessary—FOIA fees cover just less 

than 1 percent of the cost of implementing FOIA—and it’s also 

often legal. The 2007 FOIA amendments make it very clear that 

anytime an agency misses its FOIA deadline it can’t charge most 

FOIA fees. But many agencies, with the very troubling support of 

Department of Justice, have improperly skirted the crystal-clear intent of these provisions so they can use sticker shock to head off 

requests without processing them. 

Fortunately, both FOIA bills include language which should prohibit these high jinks once and for all. 

The second barrier: an improper withholding of information. This 

Sunshine Week, White House spokesperson Josh Earnest repeated 

a Department of Justice talking point touting a 91-percent FOIA 

release rate, but this figure is extremely misleading. DOJ numbers 

ignore 9 of the 11 reasons FOIA requests are denied. The actual 

FOIA release rate is just over 50 percent. 


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And many of those partial releases—you see them right here. 

Reams and reams of wholly blacked-out pages are classified as partial and go into the DOJ’s figure as such. 

More startling, the AP’s recent finding that, when challenged, 

government agencies admit they wrongly withhold information almost a third of the time. 

As this committee well knows, the most oft-abused exemption is 

Exemption 5, the go-to exemption that agencies use to withhold 

embarrassing, incriminating, or even burdensome-to-process documents. Happy to talk more about that later. But I do laud both of 

the (b)(5) fixes in the bill. They are very good. 

The third barrier: the inability for agencies to leverage technology to improve FOIA and recordkeeping procedures. Because of 

this, your bill’s language instructing agencies to make information 

public to the greatest extent possible through modern technology is 

very welcome. 

FOIA shops are far behind the private sector utilizing e-discovery 

and automated front-end redaction tools to process requests, and 

they are also far behind making their releases digitally available 

to the world. Just 40 percent of the agencies follow the intent of 

the 1996 E–FOIA amendments by routinely posting documents online as they’re released. 

Now, the good news is there are some good examples. The 

FOIAonline agencies post documents as a matter of practice. And 

the Department of State, for all of its other FOIA and recordkeeping problems, does have the best online FOIA reading room 

that posts all of its releases online. 

Email. Today, right now, Federal agencies are still not required 

to digitally preserve their emails. The deadline is not until December 2016. Until then, Federal employees will continue to be allowed 

to select themselves which emails they believe to be Federal 

records, print them out, and file them in a box. As long as this 

practice is allowed to continue, it’s unrealistic to expect that any 

Federal agency will properly search emails in response to FOIAs or 

that their email preservation rate will be any better than the State 

Department’s .006 percent department-wide. 

The final overarching point I’d like to make is that the root cause 

of these problems that you’ve heard today is a lack of an independent, robust organization that monitors and enforces FOIA compliance throughout the Federal Government, a FOIA beat cop. 

The current process of encouraging agency compliance—that’s 

what the DOJ does—at the same time it defends agency 

withholdings and abuses and reviewing agency compliance—that’s 

what OGIS does—after it gets OMB approval to review are clearly 

not establishing agency compliance with the FOIA. My fear is that, 

without robust enforcement, your excellent bill won’t fix the root 

cause of the problem. 

Thank you very much for this hearing. Thank you for passing the 

excellent bill out of committee. 

[prepared statement of Mr. Jones follows:] 


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Chairman CHAFFETZ. Thank you, Mr. Jones. 

Ms. Garcia, you’re now recognized for 5 minutes. 

STATEMENT OF LISETTE GARCIA 

Ms. GARCIA. Mr. Chairman, thank you so much for having me. 

Actually, we’re coming up on our second anniversary, and you’re 

welcome to join us at our rooftop party. 

In the meantime, my written remarks and planned remarks have 

already been submitted for the record, so I thought I might take 

the time allotted to me to address some other issues already raised 

by the committee, if that’s possible. 

Mr. Chairman, you did an excellent job of laying out the land of 

FOIA. There are a lot of—an article went out last night that’s 

going viral right now inviting 25-year-olds to come and watch how 

their government works. They are learning for the first time that 

they’re entitled to public records under the law. It’s, like, crazy. So 

I definitely appreciate you laying out the, sort of, parameters of the 

law. 

One thing I would clarify is that, of the nine exemptions that are 

listed in the FOIA statute, only six of them are discretionary. 

Three of them are exclusions. Three are—you know, according to 

the law, you’re not allowed to have these records. But six of them 

are discretionary, which means that agencies are not compelled to 

conceal those records. They actually have some judgment and can 

say, you know what, maybe we’d like to keep these back, but, honestly, it wouldn’t hurt; let’s give them out. Right now, the agencies 

are treating them as de facto exclusion, so all nine exemptions are 

now being withheld. 

To Mr. Cummings’ point, the ranking member, I’m afraid I would 

dispute the records, the numbers that are self-reported by the 

agencies. The full-time employee rate, although it’s gone down, it’s 

been far surpassed by a spike in contractor workers replacing government employees. While they shouldn’t, according to the Federal 

Acquisition Regulation, be performing inherently governmental 

functions, in many cases they are. I’ve actually requested the 

records, and even something as small as CBP is paying a quartermillion dollars per staffer outside of the government employment 

environment. 

So another thing that’s actually causing a spike in spending—in 

requests—Mr. Cummings raised the issue of requests spiking 

under the Obama administration—it’s actually—I think amnesty is 

responsible for the spike in requests. There is a league of immigration advocates who have encouraged all individuals who would like 

to be approved for amnesty to file a FOIA request seeking their 

record, their file, their immigration file, and this is actually singularly responsible for that spike in requests. 

To go on to whether agencies are punishing FOIA officers, I actually think it’s the reverse, sir. It’s actually the case that the FOIA 

chief that was in charge at the IRS over the time of Lois Lerner 

delaying release and not knowing where the records were, in fact, 

that person has been promoted and is now in charge of withholding 

Obamacare records over at CMS. And so they’re actually rewarded 

for keeping the government secrets rather than punished for leaving them out. 


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And those are pretty much the issues that I wanted to raise. 

In my written remarks, I raise the issue of fees also, just like Mr. 

Jones. The idea that the regular American citizen cannot file a 

FOIA request, that you have to be somebody as big as the AP or 

Bloomberg, it’s just unacceptable. OGIS right now doesn’t—it’s 

where records requests actually go to die. 

So, in a sense, I’m like the citizens’ OGIS. I don’t have a big, dramatic story to tell you that I don’t get the records, because I actually do get the records without going to court. And one example is 

what I got for ProEnglish, where they were able to get the records 

of Obamacare being promoted in languages other than English. 

But getting back to OGIS, they’ve actually been tasked—their 

enabling authorization legislation tasks them with providing agencies with procedural guidelines so that they can actually improve 

their FOIA requests. Four years later, the Government Accountability Office did a report and found that, in fact, OGIS wasn’t 

doing that at all. And so, if it hasn’t done what it was initially established for, I’m not sure why we should trust it for more responsibilities. 

And, lastly, with regard to the continued treatment of DOJ as 

the ‘‘FOIA cop’’ I think I heard earlier today, in fact, as was pointed out by Mr. Silver, DOJ is actually the litigator that fights to the 

death all these FOIA requests. And so I think it’s quite a conflict 

of interest for them to position themselves as the leader in the 

FOIA world. 

And, in point of fact, the courts have told them they are not. 

There is no single agency responsible for administration of the 

FOIA under the law, according to the Administrative Procedure 

Act. And so DOJ has positioned itself that way by hosting trainings 

where they teach FOIA officers across the Federal agencies how to 

avoid fulfillment of FOIA requests. So it’s DOJ that’s positioned 

themselves that way. We continue to give them that credit because 

they bamboozle media, unfortunately, into believing that they are 

the FOIA chiefs, and it just sort of becomes a circular process. 

So that those are my remarks. I’m happy to answer any questions. Thanks. 

[Prepared statement of Ms. Garcia follows:] 


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Chairman CHAFFETZ. Thank you. Appreciate it. 

Mr. Rottman, you’re now recognized for 5 minutes. 

STATEMENT OF GABRIEL ROTTMAN 

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

Cummings, and members of the committee. Thank you for inviting 

the American Civil Liberties Union to testify today on the Freedom 

of Information Act. 

The ACLU believes that the right to know what the government 

is doing in our name is a necessary corollary and prerequisite to 

the exercise of our First Amendment rights to freedom of speech, 

press, assembly, and petition. We simply cannot enjoy these rights 

to the fullest extent of the Framers’ intent without an informed 

populace. The Freedom of Information Act should be, but often is 

not, the most important tool in guaranteeing this right to know, 

and we applaud the committee for holding this crucial hearing. 

As detailed in our written testimony, we offer a number of reforms that could easily and quickly be adopted and that would improve the process for users and government agencies alike. For instance, Congress could mandate the creation of a government-wide 

portal that would provide users with a one-stop shop for the submission of FOIA requests to any agency or agencies that would 

track all requests, and it would allow requesters to easily check the 

status of their requests. Congress could require the posting of all 

released documents online in an easily text-searchable format and 

require agencies to store electronic documents, including emails, 

also in an easily searched format. 

Congress should clarify that agencies may not falsely issue ‘‘no 

record,’’ responses when, in fact, records exist but contain sensitive 

law enforcement material or the existence of those records is classified and the records are therefore subject to the exclusions of section 552(c). In such cases, agencies should not lie, but should simply offer what amounts to a Glomar response; that is, they should 

say: ‘‘We interpret all or part of your response as a request for 

records that, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we will therefore not process that portion of your request.’’ 

Importantly, Congress should resist the creation of new exemptions to FOIA, such as that proposed in the Senate’s cybersecurity 

information-sharing bill, which is currently pending in that chamber. As others have noted, Congress should pass the FOIA reform 

legislation which is currently pending in both Chambers, which 

would create the portals I mentioned above and would codify the 

presumption of disclosure absent foreseeable harm, which is currently applicable in the agencies through executive directive. 

Congress should also reintroduce from earlier versions of the bill 

a balancing test for Exemption 5, which would allow agencies and 

the courts to order the disclosure of records covered by Exemption 

5 privileges or the work product doctrine if in the public interest. 

And relatedly, Congress must address the growing problem of secret law, which is anathema in a participatory democracy and is 

epitomized in secret court opinions permitting, for instance, the 

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ligence surveillance laws and the Office of Legal Counsel opinions 

authorizing torture and targeted killing. 

The Freedom of Information Act and our open and transparent 

system of democratic government is the ultimate safeguard of our 

essential freedoms. This notion was at the very heart of Congressman John Moss’ decade-long fight to pass FOIA almost 50 years 

ago in 1966. Indeed, on the floor of the House during debate over 

the measure he made that clear. Information about government, he 

said, is as basic to the intellectual diet as are proper seasonings to 

the physical diet. 

Our Constitution recognized this need by guaranteeing free 

speech and a free press. Mr. Speaker, those wise men who wrote 

that document, which was then and is now a most radical document, could not have intended to give us an empty right. Inherent 

in the right of free speech and of our free press is the right to 

know. It is our solemn responsibility as inheritors of that cause to 

do all in our power to strengthen those rights and to give them 

meaning. Our actions today in this House will do precisely that. 

And it is in that spirit that I thank the committee for holding this 

essential hearing on how to further strengthen those rights 

through an improved Freedom of Information Act. 

Thank you. 

[The statement of Mr. Rottman follows:] 


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Chairman CHAFFETZ. Thank you. 

Ms. Weismann, you are now recognized for 5 minutes. 

STATEMENT OF ANNE WEISMANN 

Ms. WEISMANN. Mr. Chairman and members of the committee, I 

have spent many, many years fighting for greater public access to 

records that show the public what our government is doing and 

why. And despite its flaws, I continue to believe the FOIA offers 

the best tool we have for this purpose. 

Like Mr. Jones, I do not agree with some on the earlier panel 

that suggest that the FOIA is broken. That said, however, the statute as currently written definitely presents loopholes and limitations that opportunistic agencies abuse to circumvent its underlying disclosure purpose. 

There are steps this committee and Congress as a whole can take 

to make the FOIA better, and I think they start most significantly 

with passing the FOIA Oversight and Implementation Act of 2015, 

which enjoys rare bipartisan support and now, Mr. Chairman, 

boasts another important champion in you. 

The current situation cries out for the kind of meaningful and robust reforms in this legislation. We’ve heard a lot today about Exemption 5, and I echo those sentiments, that Exemption 5 is, I believe, the most abused exemption that is used to block public access 

to a wealth of information. In litigation that I brought when I was 

at CREW against the Department of Justice, DOJ went so far as 

to argue it had no legal obligation to produce a single OLC opinion, 

even those that provide the definitive position of the executive 

branch or a definitive statutory interpretation that all agencies 

must follow. 

Exemption 5 has become the catchall to withhold virtually any 

records agencies fear may result in embarrassment or unwanted 

attention. And the FOIA Act addresses this problem by excluding 

records from Exemption 5 that embody the working law, effective 

policy, or final decision of the agency. I think this will avoid the 

very harm that Congress thought it was legislating against, the accretion or development of a body of secret law, something that has 

been widely criticized across the political spectrum. 

I also agree with Mr. Rottman too, though, that the bill should 

go further, it should include a provision that was introduced last 

year that would add a balancing test, and here’s why. While I 

would certainly support efforts to get rid of the deliberative process 

privilege altogether, I don’t think that’s a very realistic outcome. 

But in the discovery context, if you are a litigant and you want information that the government is claiming is deliberative process, 

you get to argue to a court that your need for that information outweighs the need of the government to keep it secret. And I believe 

by importing that test into the FOIA, it would provide the public 

and representatives of the public, such as those on this panel and 

the previous panel, to at least be able to make the argument that 

the public need for the information outweighs the government’s reflexive invocation of the deliberative process privilege. So I would 

urge the committee to go back and consider adding in that provision. 


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I also agree that by codifying the presumption of openness will 

go a long way. Right now we have what I would call is just an aspirational goal and agencies are free ultimately to do what they 

want. I think if we want to have the kind of transparency that 

President Obama committed to, we need that codification. 

At bottom, I think agencies need to understand that FOIA matters, not just as a statutory command, because it serves a critical 

role in preserving and advancing our democratic ideals. I have been 

privileged to meet with many visiting dignitaries and government 

officials from emerging democracies, and I am struck again and 

again by how they express the belief that by passing a similar law 

in their country, that is the only way that they will have a guaranteed right to have a democratic form of government. 

Sadly, in our country, however, too many agencies have lost sight 

of the importance of this right in our own governance. Instead, they 

view their responsibilities under the FOIA as a burden and a distraction from their primary mission. I think this Congress through 

legislation like the FOIA Act needs to send a very clear and unmistakable message that FOIA still matters and FOIA remains at the 

core of every agency’s central mission. 

I would be happy to answer any questions that you have. Thank 

you. 

[The statement of Ms. Weismann follows:] 


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Chairman CHAFFETZ. Thank you. I thank you all for your comments. And I will recognize myself for 5 minutes. 

There are two issues that I want to deal with, even though we 

have passed the bill out of committee, that I think we need to address before we encourage and bring it up to the floor. One of those 

is limiting back the exemptions. What I would like you to do as 

something we would appreciate if you would really put some 

thought and brainpower behind is to get back to this committee in 

about a week’s time. You’ve been looking at FOIA. You’ve spent 

time with FOIA. You’ve spent years looking at it. How would we 

reconstitute those nine? Should they be three? Should they be two? 

Maybe it’s 18 and they just have to be much more specific. 

How would you take that section of FOIA and redo it in such a 

way that there are certain things, there are certain privacy things 

with individuals that have to be, I think we would all agree about 

that. But I do hear this resounding drumbeat that says it’s being 

far too used, it’s so liberal in its approach that you can put everything under there, and then you get what Ms. Mitchell here is 

binders full of redactions. And we deal with the same thing in Congress. I mean, even when we issue subpoenas, we get information 

that’s so heavily redacted it’s ridiculous. 

So we would appreciate your thoughts and comments in writing 

back on that as we at the staff level in a bipartisan way try to redo 

that. 

Chairman CHAFFETZ. The other one that I’m struggling with a 

little bit that I need your help and insight, and I appreciate some 

verbal comments, but again give it a little bit of thought, is what 

is the consequence? Because if there are no consequences—now 

part of that can be who pays—but ultimately it’s the taxpayers that 

end up paying. Right? No skin off somebody’s back if you got to 

pay. But there has got to be some degree of consequence for noncompliance and for just running out the 20-day clock. They just 

blow right through that, and we’re talking about years often for 

these materials. 

So, Ms. Garcia, I’m going to start with you because I can tell 

you’re anxious to talk about that. 

And then, Mr. Fitton, too, if you could jump in here. 

Ms. GARCIA. Thanks so much, Mr. Chairman. 

Actually, because I don’t take these requests to court, I’m probably the most experienced in terms of securing compliance without 

that stick. 

The statute actually does provide for consequences to a FOIA officer. That’s why every single decision has to be signed by an individual. It’s often the case that, for instance, State Department is 

getting away with little initials so that you can’t track down who 

the person was who made that decision. And then, once it goes to 

court, which I never go to court, and they know I don’t go to court, 

but if you went to court, you couldn’t really pin that back on one 

person, the statute does provide. 

The problem is it gets triggered by the judge. The judge has to 

find that there was arbitrary, capricious, or, like, just so outlandish. Guess how many times they’ve ever referred something to 

special counsel? Zero, big goose egg. 


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In addition to that, because FOIA cases are decided at the litigation level—I know a lot about litigation only because that’s the way 

I’m able to avoid it—but the fact is that it’s a closed set, the FOIA 

request. So when it comes to a court it’s not like an unbounded discovery situation typically. You could go there, but typically it’s just 

the closed record that was before the agency at the time they made 

their decision and their appeal. 

Chairman CHAFFETZ. Okay. Let me go to Mr. Rottman and then 

Ms. Mitchell and Mr. Fitton. We have to keep going here. 

So, yes, Mr. Rottman. 

Mr. ROTTMAN. So fundamentally one of the primary issues that’s 

happening with FOIA today is this question of secret law, and it 

covers a lot of ground. Part of it is this deliberative process privilege, which is being used to keep what agencies are calling 

predecisional documents from the public, but those documents, for 

instance, will show internal dissent on questions that are of the utmost importance for public policy, and they’ll actually contain documents that are binding on agencies. 

Chairman CHAFFETZ. Okay. So let me just, because my time is 

expiring and we’re going to have votes and we’re going to get cut 

short. 

Ms. Mitchell, here consequence. How do you institute consequence for noncompliance? 

Ms. MITCHELL. Well, Mr. Chairman, I think that we should look 

at some of the States. The State of Florida has imposed criminal 

consequences for failure to abide by the State equivalent in Florida 

of their Freedom of Information Act. And there have been people 

prosecuted, and it has actually had the deterrent effect of making 

agency people realize that if there are consequences, they better 

follow the law. 

Chairman CHAFFETZ. Okay. 

Mr. Fitton. 

Mr. FITTON. Well, it’s difficult to impose consequences on decisions that are discretionary. And if a court disagrees, two people 

disagree. But if you eliminate the discretion, it’s easier. 

But where you have this willful withholding of documents there 

already is a law that could put you in jail for 3 years for unlawfully 

and willfully concealing records, and there’s no limit as to how that 

could be applied. And of course a change in procedure and a change 

in attitude and approach by the agency heads, by the political appointees, that reward disclosure and punish the arbitrary or broad 

exemptions that are used where everything is withheld because it’s 

deliberative process as opposed to a more careful analysis. 

Chairman CHAFFETZ. Thank you. 

I would like, all of you, to give you a chance to respond, but I’m 

a minute past my time here. So we have got other members who 

would like to ask questions. 

I now recognize Mr. Cummings for 5 minutes. 

Mr. CUMMINGS. I want to be effective and efficient. I mean, we 

can go on this merry-go-round forever. And there are clearly problems. And we have got a FOIA bill. And I know this may have been 

answered before but I was tied up in a Benghazi meeting, so I’m 

going to ask you what has probably already been asked. 


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We’re going to sit down and try to improve the bill that we have 

so that we can accomplish something. And in other words, to do 

what the law was intended to do, and that is the FOIA law. Give 

me the elements of what needs to be in that legislation. You all are 

the folks who are the experts. 

And, you know, I keep hearing about the criminal consequences. 

You know, I got to tell you, I lived in a neighborhood where people 

go to prison for stealing a bike. You know, then we got people on 

Wall Street that in some instances have been responsible—and 

banks—for causing millions of people to lose money. So, you know, 

people on my block say: What’s that about? 

I’m not saying that criminal consequences are not appropriate in 

certain instances. I just wonder when you have that, do you really 

get to the people who are truly responsible for what Mr. McCraw 

called a little earlier the culture. 

So I just want to know from a very practical—sometimes I think 

we in trying to resolve problems, we go all the way around the 

mulberry bush, and we needed to just go straight ahead and say: 

Okay, bip, bip, bip, and this is what we’re going to do so that we 

can have transparency, accountability, effectiveness, and efficiency. 

What would we have to have in the legislation to accomplish those 

things? 

Ms. GARCIA. I would agree with you, Mr. Cummings, overcriminalization is not really the answer. I mean, at some point, like 

if you completely destroy a computer, like a server getting wiped, 

then that reach spoliation to the level of criminal acts. But below 

that, I think that there’s a much lower threshold. And one of the 

ideas I would have is to cap the funding to the agencies. We talked 

a lot about raising funds. In fact, they should be reduced. There’s 

a lot of slush fund money that’s going into FOIA. Twenty-five percent of the budgets are being directed to defending against FOIAs, 

and that doesn’t even include contractors. 

So the same way a prosecutor, you were saying about a criminal, 

a kid who steals a bike, the same way we cap U.S. attorney’s offices, the amount of money, and they have to exercise prosecutorial 

discretion, who are they going to charge, who are they not, we 

should do that with FOIA. Right now it’s a limitless fund. DOJ will 

fight to the death every single little ounce. 

Mr. JONES. Mr. Cummings, thank you very much. 

I think, speaking practically, as you said, we have two very good 

FOIA bills that have passed the Senate and passed the House last 

session without becoming law. So I don’t think we should throw the 

baby out with the bathwater. 

Mr. CUMMINGS. I didn’t say throw the baby out. No, no, no, no, 

no, no, no. You didn’t hear me. I said it two or three times. I said 

what do we do to improve it or make it even better. One of the 

things that the chairman has said to me, that we would sit down 

and try to take a look at 653 and try to make it even stronger or 

make it more practical or whatever. But I just wanted to know 

from you all what. I want to start with that. 

Mr. JONES. What to improve is to continue to make the Office of 

Government Information Services strong enough so that agencies 

fear it and that it can compel agencies to release more information 

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Ms. WEISMANN. Mr. Cummings, I have three suggestions that I 

would make. One we have already discussed but you were not here, 

and that is I would revisit the idea of adding a balancing test for 

Exemption 5 deliberative process material because I think that is 

really the only way to level the playing field and avoid the kind of 

abuses we’re seeing. 

Two, I would look for more oversight within the executive 

branch, and I would consider using inspectors general. They have 

done some of this work. I think that their obligations under the 

FOIA should be made explicit. And I think this committee should 

consider legislation that would require them to report maybe every 

2 years back to Congress on how their agencies are doing with implementing the FOIA, because I don’t think either the Department 

of Justice, which I don’t think is a fair dealer in this fight, nor the 

Office of Government Information Services, which is really overworked, it can barely meet the obligations it currently has, is best 

situated. 

And I have, three, a very modest but I think practical suggestion, 

which is to require explicitly that every requester be given the 

name, contact information of someone at the agency who knows 

something about their request that they can contact and talk to. 

Thank you. 

Mr. CUMMINGS. Ms. Mitchell. And I thank the chairman’s indulgence. 

Ms. MITCHELL. Well, Mr. Cummings, I actually think that, after 

looking at the jurisprudence, the case law on the deliberative process, it is unintelligible. It is mind numbing to read those cases. And 

I think that Congress needs to eliminate the deliberative process 

privilege altogether. 

There are two other sections, two other types of privileges under 

the Exemption 5, the attorney work product in anticipation of litigation and the attorney-client privilege where the counsel to an 

agency is giving legal advice to the agency personnel making decisions. And I really think that that is as broad as it should be. I 

do not believe that Congress should give Federal judges who have 

completely mucked up, including the Supreme Court, the whole deliberative process privilege. I think it has to be very clear, and you 

should not give them the authority to decide the balancing. 

The presumption is openness. The presumption is deliver the 

documents. And if you read some of these cases where the judges 

have decided, well, is it predecisional, is it deliberative—I mean, 

what does that mean, for Pete’s sake? I mean, normal people can’t 

understand all that. I don’t understand all of that. 

It used to be in the common law definition the agency head had 

to sign off before it could be invoked, the deliberative process privilege could be invoked. My favorite of the deliberative process privilege invoked in the production that I brought here today is the 

withholding of documents written by a summer intern as deliberative process, who had gathered research and wrote memos, and 

that’s all been redacted and withheld, either redacted or withheld, 

but they won’t tell us the name because they say this person was 

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So these are the kinds of things that the agencies are just unilaterally deciding, and I think the only way to deal with it is to just 

get rid of that deliberative process altogether. 

Mr. CUMMINGS. Thank you, Mr. Chairman. 

Mr. PALMER. [Presiding.] The chair now recognizes Mr. Jordan 

from Ohio for 5 minutes. 

Mr. JORDAN. I thank the chairman. 

Mr. Fitton, let me go back to where I was with the first panel. 

We had a group of journalists who had never testified here before 

but felt it was important to come talk about this issue in front of 

Congress. I just want to make sure we’re all clear, and I’ll run the 

same questions by you. In your judgment, has the process of trying 

to get information from Federal agencies, has it gotten worse and 

more difficult to get that information? 

Mr. FITTON. Yes. 

Mr. JORDAN. Deliberative process exemption has increased dramatically? 

Mr. FITTON. Yes. 

Mr. JORDAN. And the number of redactions when do you get the 

stuff after taking forever, you got a whole bunch more redactions 

on the material? 

Mr. FITTON. Yes. 

Mr. JORDAN. And other exemptions that you may see as well? 

Mr. FITTON. Yes. 

Mr. JORDAN. Okay. So much so that the first panel—I mean, I 

still think this is amazing, that none of them had ever testified on 

this issue before, but yet the press has to come testify about restrictions the press is receiving even though we have this thing 

called the First Amendment. Pretty amazing. 

And I think it’s also important to remember the entire context. 

Not only are agencies unwilling to give citizens information, but 

the very same agencies that may not give information under a legitimate FOIA request were also targeting citizens for exercising 

their First Amendment rights, right? 

Mr. FITTON. Right. 

Mr. JORDAN. Ms. Mitchell, I know you can talk about that, right? 

I mean, take the IRS, for example. They may not comply with certain FOIA requests that you want, but they were also not just not 

complying with giving citizens information they had a right to get, 

they were also targeting potentially those same citizens. 

Mr. FITTON. We represented, worked with Wayne Allyn Root, 

who was a vice presidential candidate for the Libertarian Party, 

but he had been audited under suspicious circumstances. It took us 

a year to get this man’s one IRS file. And we didn’t go to court over 

it. But to just get your own file shouldn’t take a year from an agency such as the IRS. 

Mr. JORDAN. All I’m trying to do is sometimes we get focused, 

okay, agencies are dragging their feet, they’re doing more 

redactions, more exemptions. We got to remember the big picture. 

These same agencies have targeted citizens. 

Mr. FITTON. Right. 

Mr. JORDAN. So these same agencies have behaved so poorly that 

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tions the press is getting. I mean, it’s unprecedented where we’re 

at. 

So I would to the chairman say we have got to understand the 

entire context here of what’s going on. 

Mr. FITTON. It’s catch me if you can government. And the agencies don’t like to turn over documents, and unless you’re represented in court, it is unlikely you’re going to get a substantive 

response from the government unless you’re willing to wait years 

and months, which is outside what the law requires. 

Mr. JORDAN. No. Judicial Watch has proven that. The only way 

you’re going to get stuff, almost the only way, is to go to court. We 

get that. 

I want to ask all of you, have you seen a marked increase in all 

the things we’re talking about since this administration took office? 

Mr. Fitton. 

Mr. FITTON. Yes, we have had a dramatic increase in government 

spending and activity and less transparency. 

Mr. JORDAN. Ms. Mitchell. 

Ms. MITCHELL. Well, Mr. Jordan, actually I hadn’t been involved 

in FOIA until I started dealing with clients who had been targeted. 

So we began to try to get information from Federal agencies, not 

the IRS but others, and submitted FOIA requests to find out, to try 

to get to the bottom of the targeting. And I include some documentation in my testimony about some of my clients and our efforts to try to get information. 

Mr. JORDAN. Ms. Mitchell, let me ask you a question. I just 

thought of this. It wasn’t in my planned questions. You had clients 

who were targeted, and then you requested, did FOIA requests to 

get information, 

Ms. MITCHELL. Correct. 

Mr. JORDAN. Did it ever work in reverse? Do you have any clients who requested information and because they requested information were then in some way harassed by a Federal agency? 

Ms. MITCHELL. Well, they had already been harassed. 

Mr. JORDAN. I understand the situation. I’m just curious, maybe 

we don’t know, but this is something I’m kind of interested in finding out, if it’s ever worked the other way around. Someone is asking for information, and because of that request they suddenly become a target of harassment from an agency. 

Mr. FITTON. Well, the IRS told us when they audited us during 

the Clinton years: What do you expect when you sue the President? 

You’re going to scrutinize the government, the government is going 

to scrutinize you. 

Mr. JORDAN. I got 30 seconds left, so I want to go to the memo. 

I mean, I read this memo that the White House Counsel sent to 

all the general counsels of the various Federal agencies, if this, as 

I said to the first panel, if this isn’t a chilling impact on what we’re 

talking about, I don’t know what is. When they should, every agency should consult with the White House Counsel’s Office on all documents, all documents, that may involve documents with White 

House equities. 

Any interest the White House may have, that’s as broad as you 

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quests, judicial subpoenas, FOIA requests. They list everything you 

can imagine. I’ve never seen anything like that. 

Ms. GARCIA. Mr. Jordan, more dramatic than that, weeks after 

the President issued that directive saying that agencies should err 

on the side of transparency and openness, he was awarded an 

award by the transparency community, not including me, on the 

promise of his future transparency, sort of like the Nobel Prize. 

And in point of fact, he closed it to the press. So the actual receipt 

of the award was not open to the media. If that doesn’t send a 

chilling statement, I don’t know what does. 

Mr. JORDAN. I thank you all. 

Thank you, Mr. Chairman. 

Mr. PALMER. The chair now recognizes Mr. Lynch from Massachusetts for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

Thank you all for your help. 

I just want to point out one contrast here. Up until about an 

hour ago when the USA Freedom Act passed, the government in 

getting information about the general public was unfettered, 

warrantless gathering of information of the public. And even when 

they had to go to the FISA court we could find no examples of the 

FISA court ever denying a warrant for the government to gather 

metadata regarding its citizens. 

So here you have the government with absolute discretion on 

gathering information about private citizens, and yet when private 

citizens try to understand a little bit about what the government 

is doing, it’s a roadblock, complete roadblock. 

I would like to talk about something that a couple of the panelists have brought up about the inspector general, the way we have 

inspector generals in each department. And they do a pretty good 

job. I have to say I’m pretty pleased with the way they do their job. 

But they are also sometimes denied access to information or given 

the runaround like you all are on a regular basis. 

So the problem is this weighing, this balancing and determining 

whether some information lies within one of the exemptions or 

should be protected. And you all have to go to court to have that 

figured out, and it’s a very long process, for most of you, most of 

you. 

Would it be helpful if we had an advocate general for freedom of 

information within the IG’s office where they could in the first instance determine whether or not these people are stonewalling and 

looking at the information and saying: Hey, wait a minute, this 

does not pass muster, this is not part of the deliberative process. 

From the previous panel, they were saying how stuff that was 

just—there was no contest that this should have been information 

that was—and even the judges, when it finally went to court, the 

judges said this should have never been denied, it should have 

been responded to, the public should have had this information. 

There has got to be some way to short-circuit this and to 

incentivize these agencies to cooperate as FOIA would intend. And 

that could be civil penalties, it could be awarding costs or damages 

to a party that hasn’t been dealt with fairly or there’s been unreasonable obstruction of justice and flow of information because of the 

positions that these departments have taken. There’s got to be 


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some consequences here. We have to induce good behavior, and 

we’re not seeing that right now. 

So would an advocate general or would any of those measures 

help? And, look, I voted for the FOIA bill that we passed here, fully 

supported, but I don’t think it addresses every single aspect of 

what you’re bringing up here today. 

Mr. Fitton. 

Mr. FITTON. The concern is about these administrative agencies. 

They’ll have opinions and it’s another layer of bureaucracy that 

may or may not be helpful, and the courts may give undue deference to them, and they are still working for the agency at issue. 

IGs are interesting creatures. Many IG reports are both exposes 

and coverups at the same time. And I think it’s notable, I think it’s 

in the new FOIA legislation, that there’s a mandate that material 

behind IG investigations be publicized as well, or made public, that 

it currently isn’t happening. 

So getting access to the courts and taking away the deference, 

taking away the excuse courts have to give deference to the agency 

discretion on these withholdings, that’s what we have to work 

around, because as long as they have that discretion it’s going to 

be very difficult to overcome that because the courts are going to 

say: Who am I going to listen to, the agencies who know what 

they’re doing? What do you know, Judicial Watch, about the damage to the agency’s deliberative process if I don’t release this information? Or they’re weighing privacy interests. 

During the Bush administration, one of my favorite worst examples, was that after 9/11 one of the agencies redacted the name of 

Osama bin Laden to protect his personal privacy. Now, we can 

laugh about it, but it took a lot of time for us to undo it. 

Mr. LYNCH. Not to cut you off, and I appreciate the example, but 

the inspector generals are swimming in that world. They are constantly dealing with that world. So they too have a discretion and 

a certain balance of interest there where they’re trying to get information for us, and they work with this committee especially. 

Mr. FITTON. And they already have an obligation to enforce the 

law, and in theory there is nothing preventing them from doing 

FOIA investigations and oversight—— 

Mr. LYNCH. I guess I’m trying to short-circuit this process that 

you’re all going through very painfully. 

Thank you. I yield back. 

Mr. PALMER. Thank you, Mr. Lynch. 

The chair now recognizes Mr. Carter from Georgia for 5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

And thank each of you for being here. We appreciate—as if you 

had any other choice—you being here. But we do appreciate it very 

much. 

Ms. Garcia, I’m interested particularly in your role with the Resource Center and in your dealings with DHS. I have a bill that 

is before DHS right now, H.R. 1615, dealing with FOIA. As you 

know, DHS has got the largest backlog of any other agency in the 

way of FOIA requests, and I’m very concerned about that, and 

that’s what this bill addresses, is that backlog, to try to catch us 

up and try to help us to address it. 


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But what I want to ask you about is particularly the fees that 

are involved in this. What do you find most problematic, is it the 

high price of the fees or the estimation of what the fees are going 

to be? What’s the biggest problem when it comes to fees for a FOIA 

request? 

Ms. GARCIA. Well, one of the largest problems, Mr. Carter— 

thank you so much for your question—one of the largest problems 

is that the agencies know that most requesters don’t know the law, 

so they actually make things up as they go along. 

A lot of contractors are working at DHS, and so what’s being not 

shown in the full-time employee numbers that were given by Mr. 

Cummings, the ranking member, is that, in fact, there’s this whole 

crew of shadow workers at DHS. They’re there to kill the FOIAs, 

not to fulfill them. They will give you a phone call and tell you, just 

as they said in the earlier panel, that your FOIA doesn’t make 

sense or that it doesn’t somehow comply. All of that time is added 

to the fee that it took to process your request. 

On top of this, because the contract regulations don’t allow contractors to make decisions, then you need a second layer where an 

actual employee rubber stamps the work of the other person. Now 

you’ve gotten a bill for double the price. 

Mr. CARTER. Right. Well, let me ask you, you gave us an example 

where you had requested a $60 fee waiver, and you got an eightpage response. Now, I’m not a lawyer, but I read through this, and 

this looks like legal jargon to me. I can only imagine how much this 

cost to assimilate, as opposed to just waiving the $60 fee. 

Ms. GARCIA. That’s exactly right, Mr. Carter. In point of fact, the 

request only amounted to $3, but after they added the contractor 

and the rubber stamper, then it actually resulted in a $60 fee, so 

it was something like a 1,900 percent increase. And then someone 

who gets paid roughly in the neighborhood of $225,000 a year took 

the time to write out, not including benefits and perquisites, took 

the time to write out an eight-page legal memo like to the nines, 

like we were going to court. 

So, yes, in fact they add their own. Twenty-five percent of these 

budgets are going to FOIA defense, and that was as much as I 

could adequately honestly compute. It may be more. I would say 

that your bill trying to curb DHS expense in FOIA is very welcome, 

precisely the provision that talks about auditing, as long as we 

don’t hire another contractor to perform the audit. 

Mr. CARTER. Okay. Let me ask you this. Did they give you an 

estimate of how much it’s going to be? 

Ms. GARCIA. They do. And there is an interesting procedure 

that’s starting to get widespread, like catching like wildfire all over 

the Federal Government, which is they do give you an estimate. 

They say: If you don’t give us this money or promise to pay this 

money within 10 days, we will close your request. 

Of course you can appeal this decision, no problem, you have 45, 

60 days, whatever it is. The problem is once they’ve already killed 

your request, what incentive does the agency have to reverse its 

original position and then suddenly grant you the fee waiver and 

revive your FOIA request? It doesn’t happen. 

Mr. CARTER. Right. Right. Okay. 


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Again, in dealing with the fees and when they’re coming up with 

these estimates, one thing that bothers me is—obviously my bill 

deals with DHS—but we need a consistent policy throughout all 

the agencies. Is that something that you feel like, Ms. Mitchell, is 

that something that you think would be possible? Because it appears to me from what I’ve heard today, not only with this panel 

but the first panel as well, is that it’s haphazard among the agencies. 

Ms. MITCHELL. It is completely haphazard. And it’s interesting, 

but if you submit a FOIA request, the exact same FOIA request to 

multiple agencies, you will get radically different levels of response, 

and some agencies are more responsive than others. And the IRS 

just happens to be one that takes the position that they’re not 

going to answer any FOIA requests unless you sue them. That’s 

their default position. So there is no standard of responsiveness, 

level of responsiveness, how they price things, nothing. 

Mr. CARTER. Okay. Well, guys hang in there. We’re doing the 

best we can. 

Mr. Chairman, I yield back. 

Mr. PALMER. Thank you, Mr. Carter. 

The chair now recognizes Mr. Hice from Georgia for 5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

And thank each of you for being here today. Very disturbing information. 

Just as a general rule, what would you say is the average time 

it takes to receive a FOIA response? Is there any average or any 

way of determining that. 

Mr. FITTON. If they could, it would be years. 

Mr. HICE. So you’re saying average would be years? 

Mr. FITTON. A lawsuit may get you documents in less than a 

year. 

Mr. HICE. Okay. 

Ms. Mitchell. 

Ms. MITCHELL. I have so many clients who could paper a room 

with letters from Ms. Higley from the IRS. She generates those letters. She’s a very nice person. She’ll generate these fake dates. 

Every 90 days you get another letter, you get another letter. 

Mr. HICE. Would you say years? 

Ms. MITCHELL. Years. This has been going on years. 

Mr. HICE. Okay. 

Mr. Jones. 

Mr. JONES. Varies agency by agency. The longest National Security Archive has is over two decades. 

Mr. HICE. Mercy. 

Ms. Garcia. 

Ms. GARCIA. Usually clients before they come to me, it’s 2 to 3 

years and a lawsuit. 

Mr. HICE. Okay. 

Mr. Rottman. 

Mr. ROTTMAN. Part of the problem is there’s two separate averages. So for cases where the documents are politicized it’s far more 

than the 20 days. And then for run-of-the-mill cases it’s less. 

Mr. HICE. Okay. 

Ms. Weismann. 


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Ms. WEISMANN. Months to years. 

Mr. HICE. Okay. So far, far beyond the 20 days. I mean, in fact, 

it is an extreme situation that the law is actually followed. 

Mr. Fitton, let me go back to you. Do you believe that there is 

an attempt by agencies to actually obstruct? Is the word obstruction too strong? 

Mr. FITTON. No, it’s not too strong, particularly with the IRS and 

the State Department. That’s knowing and willful conduct that 

rises to a criminal level in my view. The general counsel of the IRS 

was there during the IRS attacks on the Tea Party, and he’s there 

guiding the document response into that very scandal. 

Mr. HICE. All right. So you absolutely used the word obstruction 

is taking place? 

Mr. FITTON. Criminal obstruction. 

Mr. HICE. Criminal obstruction. All right. So would you go so far 

as to say that we are potentially facing a constitutional crisis if 

just, say, FOIA requests are regularly denied, we have got some 

constitutional issues potentially in the making? 

Mr. FITTON. Well, not only do you have that vis—vis the executive branch and the citizenry, but you have it with the interbranch 

relations as well. So, yes. 

Mr. HICE. Okay. Mr. Fitton, let me go to you. You stated a moment ago that were told by an agency official that if you scrutinized the government, that the government will scrutinize you. I 

believe that was you. 

Mr. FITTON. Yeah, that was during a discussion about an IRS 

audit. It was an IRS official who told us that. 

Mr. HICE. Okay. Unbelievable. All right. So does that mean the 

IRS considers a FOIA request government scrutiny? 

Mr. FITTON. Oh, for sure, for sure. 

Mr. HICE. All right. So the IRS would look at a FOIA request as 

an attempt by an individual or a group to scrutinize the government and therefore they are worthy of retaliation? 

Mr. FITTON. I believe there have been retaliatory audits for activities of groups that are opposed to either this administration or 

prior administrations, yes. 

Mr. HICE. All right. 

Well, Ms. Mitchell, let me go to you. I believe then you said that 

you personally got involved in this whole thing because of people 

you are now representing who were scrutinized by the government. 

All right. Specifically or is that IRS? Or are there other agencies? 

Ms. MITCHELL. It’s both. 

Mr. HICE. Both what? 

Ms. MITCHELL. I have one client who actually testified before a 

subcommittee of this committee in the last Congress, and when she 

filed applications for exempt status for two Tea Party groups, within a very short period of time she was visited personally by the 

IRS. Her business was visited twice by the Bureau of Alcohol, Tobacco, and Firearms. Her business was suddenly audited by OSHA. 

The FBI came seven times. I mean, this is a woman who had been 

living her life for quite a long time with none of that government 

interest in her or her family. 

Mr. HICE. So connecting the dots is undeniable in your opinion. 

Ms. MITCHELL. Certainly seems more of a coincidence. 


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Mr. HICE. Okay. If it’s not already been stated, could you provide 

that evidence to this committee or has that already been submitted? 

Ms. MITCHELL. Yes. It has been in the last Congress. I’m more 

than happy to provide it again. 

Mr. HICE. Okay. All right. Thank you for that. 

Ms. Garcia, let me end my time with you. You stated just a moment ago that the DHS, I believe you mentioned specifically, has 

the attitude that absolutely their attempt is to avoid fulfilling 

FOIA requests rather than meet those requests. Is that right? 

Ms. GARCIA. Absolutely. In fact, the DHS FOIA chief said I was 

the Kerry Washington of FOIA, that if somebody needed a request, 

they knew where to get it handled. Who would say that? I mean, 

that’s like a scandal. That’s like a TV show. 

Mr. HICE. Would you submit that evidence to this committee? 

Ms. GARCIA. Absolutely. 

Mr. HICE. Thank you very much. 

And I yield back. 

Mr. PALMER. Thank you, Mr. Hice. 

The chair now recognizes myself for 5 minutes. 

Mr. Fitton, in regard to the memo from the White House that 

Mr. Jordan read in which they directed every executive agency to 

notify them of any requests for information, and in the context of 

your answer to a question Mr. Hice just asked about and which you 

responded that there is criminal obstruction, that’s pretty strong, 

I want to know what you would think about an agency possibly engaging in an effort to instruct their employees on how to work with 

outside groups to avoid the requirements of a FOIA request. 

Mr. FITTON. It certainly would be inappropriate. The Justice Department is the locus of evil when it comes to FOIA noncompliance. 

All the agencies get represented by the Justice Department, and 

everything they say and everything they do in terms of withholding 

is almost always supported by the Justice Department. I would 

bring the Attorney General or a representative up from Justice and 

say: Tell us those cases that you’ve turned away. 

Mr. PALMER. Let me share with you some information that I 

shared with the panel earlier from the press. This is the written 

testimony submitted by Mr. David Schnare, former employee of the 

EPA, who testified that the EPA had prepared an 83-page 

PowerPoint presentation on how to use electronic tools to collaborate with external partners. I’m not going to read all of this. But 

he talked about the use of instant messaging, other real-time correspondence tools, even encouraging using AOL and Yahoo and 

asking third parties to set up chat rooms. 

And then here’s the part I find particularly troublesome. He said 

this presentation also documents a culture of disregard for agency 

duties under public records and FOIA requirements. It characterizes FOIA and the NARA rules as Federal laws that constrain Federal administration of public-facing Web collaboration tools. Actually here’s the PowerPoint from that. And listed among those is the 

NARA, the Federal Advisory Committee Act, the Paperwork Reduction Act. 

And then he goes on and says the next section of the presentation describes creative solutions to dealing with Federal conVerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00168 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL

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straints—now, they’ve already considered these requests for documents to be constraints—and openly suggests ways to circumvent 

public records acts. Specifically, EPA encourages its employees to 

help outside parties to sponsor the Web-based collaboration tools, 

noting that as long as we’re only participants, not administrators 

of a Web collaboration site, the site is not limited by those same 

FOIA and Public Records Act constraints. 

How would you respond to that? How would you characterize 

that, let me say that, put it that way? 

Mr. FITTON. That’s a willful avoidance of the law, and the criminal law already prevents—there’s a criminal sanction for willful 

concealment of documents. And the classification issues with a 

process like that are significant. You could have classified records, 

depending on the agency. And to be creating Federal records and 

not maintaining them in a willful way is a criminal violation of 

law. And this is a dramatic illustration of a coordinated effort to 

avoid transparency laws and disclosure. 

Mr. PALMER. So that would perhaps go beyond obstruction. 

Mr. FITTON. Well, I say obstruction when there is a willful concealment of records, you’re violating the Freedom of Information 

Act, but there are criminal sanctions associated with concealing 

records. And that has got to be a tool that prosecutors, you know, 

they can do a case against the former Speaker of the House by interpreting the structuring laws, antistructuring laws, maybe they 

can figure out how to do the criminal laws and impose them on the 

Federal bureaucracy that willfully violate FOIA in ways that take 

away our freedom to know what our government’s up to. 

Mr. PALMER. Would any of the other panel like to respond to 

that? 

Mr. JONES. I’d add it’s very widespread. 

Ms. GARCIA. I would also add that LinkedIn is something to be 

looked into. It’s probably because the FOIAs are so slow that it 

didn’t make it to them. And you talked about Yahoo Messenger, 

something ridiculous like that. But, indeed, LinkedIn sold half a 

million dollars of contracts, and I went to a training for government officers, and they were specifically told to use their private 

email accounts to be able to communicate with people. 

Mr. PALMER. I would like to thank all of our witnesses for taking 

the time to appear today. If there is no further business, without 

objection, the committee stands adjourned. 

[Whereupon, at 6:02 p.m., the committee was adjourned.] 


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