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ENSURING AGENCY COMPLIANCE WITH 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 3, 2015 

Serial No. 114–91 

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, Senior Counsel 

SHARON CASEY, Deputy Chief Clerk 


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C O N T E N T S 

Page 

Hearing held on June 3, 2015 ................................................................................. 1 

WITNESSES 

Ms. Joyce A. Barr, Chief FOIA Officer, U.S. Department of State 

Oral Statement ................................................................................................. 8 

Written Statement ............................................................................................ 10 

Ms. Melanie Anne Pustay, Director, Office of Information Policy, U.S. Department of Justice 

Oral Statement ................................................................................................. 19 

Written Statement ............................................................................................ 21 

Ms. Karen Neuman, Chief FOIA Officer, U.S. Department oF Homeland 

Security 

Oral Statement ................................................................................................. 29 

Written Statement ............................................................................................ 31 

Mr. Brodi Fontenot, Chief FOIA Officer, U.S. Department of the Treasury 

Oral Statement ................................................................................................. 36 

Written Statement ............................................................................................ 37 

Ms. Mary Howard, Director, Privacy, Governmental Liaison, and Disclosure, 

Internal Revenue Service 

Oral Statement ................................................................................................. 40 

Written Statement ............................................................................................ 42 

APPENDIX 

RESPONSE from Ms. Barr DOS to Questions for the Record ............................. 94 

RESPONSE from Ms. Pustay DOJ to Questions for the Record ......................... 110 


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ENSURING AGENCY COMPLIANCE WITH THE 

FREEDOM OF INFORMATION ACT (FOIA) 

Wednesday, June 3, 2015 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 9:12 a.m., in Room 2154, 

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

the committee] presiding. 

Present: Representatives Chaffetz, Mica, Duncan, Jordan, 

Walberg, Amash, Gosar, Gowdy, Meadows, DeSantis, Mulvaney, 

Buck, Walker, Hice, Russell, Carter, Grothman, Hurd, Palmer, 

Cummings, Norton, Lynch, Connolly, Cartwright, Duckworth, 

Kelly, Lawrence, Watson Coleman, Plaskett, DeSaulnier, and 

Welch. 

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

Without objection, the chair is authorized to declare a recess at 

any time. 

We appreciate all of you being here for the third panel of this 2- 

day hearing, ‘‘Ensuring Agency Compliance with the Freedom of 

Information Act.’’ 

The President has, ‘‘committed to creating an unprecedented 

level of openness in government.’’ Those were his words. That is 

not the case when it comes to filling FOIA requests. The backlog 

of FOIA claims has more than doubled since the President has 

taken office. 

In March 2014, the Associated Press reported the Obama administration more often than any other administration had censored 

government files or outright denied access. Last year, the administration used exemptions to withhold information more than 

550,000 times. Agencies must consult with the White House on, ‘‘all 

document requests that may involve documents with White House 

equities.’’ Just in the last year, the government fully denied access 

or censored records in at least 250,000 cases, or roughly 39 percent 

of all requests. This is the highest number of denials in the history 

of FOIA. 

Yesterday, we heard from individuals who waited years to get 

public records they requested. These requests came from media— 

national, reputable media organizations, as well as individuals. The 

witnesses yesterday told us the FOIA system is broken and probably broken by design. 


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In preparing for this hearing, the committee received numerous 

examples of delays, unreasonable redactions, and abusive fees, all 

of which hindered transparency. 

For instance, the EPA strategically avoided disclosure under 

FOIA when discussing the development of the Pebble Mine in Bristol Bay, Alaska. Documents obtained by the committee show that 

the EPA employees contemplated and advocated for a preemptive 

veto of the project well before the petition was submitted to the 

EPA. 

The IRS contacted one requester, Colin Hanna, on four separate 

occasions to explain it needed more time to respond to his FOIA 

request, but after 2 years they closed his request, asserting Mr. 

Hanna failed to reasonably describe his requested documents. 

GSA identified 70,000 records as responsive to a FOIA request 

on its Green Buildings Initiative and then used the number of 

records as a reason to close a request from the Taxpayer Protection 

Alliance. 

A requester waited 10 months before the DEA told him that his 

request for 13,000 documents related to the capture of Mexican 

drug lord El Chapo would cost $1.4 million. 

One 26-year-old freelance journalist wrote the committee about 

his first experience with FOIA, saying, ‘‘I often describe the handling of my FOIA request as the single most disillusioning experience of my life.’’ 

The responses are enlightening and continue to come in. They 

seem to be numerous, bipartisan, across the board, consistent, and 

just absolutely frustrating. 

We also saw unreasonable and inappropriate redactions, including many from the FCC. Unredacted documents produced by the 

committee show the FCC blacked out the Chairman’s initials on 

every email he sent or received—blacked them out. In doing so, the 

FCC claimed a personal privacy exemption that isn’t permissible 

for use even with lower-level staff. 

The FCC also claimed that staff commentary like ‘‘wow’’ and ‘‘interesting’’ were deliberative and redacted them under a (b)(5) exemption. The time and expense that it takes to go through and do 

such silly, silly things is so frustrating and ridiculous. It gets very 

frustrating to hear anybody claim that, oh, well, we spend this exorbitant amount of money, when you are going through and blacking out ‘‘wow’’ and ‘‘interesting’’ and the name—yesterday—one of 

my favorites, personal favorites, is blacking out the name of the 

Department of Defense person who sang the national anthem, as 

if that is some state secret. 

In one instance, simply quoting an attached press release qualified for a redaction, while the press release itself was released in 

full. It is amazing how many instances we have of publicly available information that is on the Department’s Web site, comes back 

via a FOIA as redacted information. And a press release—press release—that it was publicly released is something that you have to 

hold back from the public? It makes no sense. 

How can we trust the government’s redactions when we have examples of such unnecessary and, in many cases, inappropriate 

redactions? 


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Despite significant corruption within the agency in recent years, 

the IRS is still obstructing taxpayers’ efforts. Just getting the witness here today required a subpoena. The other four agencies we 

asked to invite their senior FOIA officers, they all agreed, they all 

showed up. Not the IRS. Nope, not the IRS. We can’t have that. 

There is only 1 person at the IRS out of 90,000 that can testify, 

Mr. Koskinen. How wrong he is. 

Ms. Howard, we appreciate you being here, but I should not have 

to issue a subpoena to get your presence here. We are talking 

about openness, transparency. We want to hear from you. You have 

dealt with this for years. But yet we had to issue a subpoena in 

order to get it. 

And when we sent a letter to all five of the departments and 

agencies asking for some basic information, a one-page request, 

anywhere between two and eight different examples that we wanted information, Department of Justice, at least they sent us a letter, at least they gave us something. It was terribly incomplete. 

The IRS, no letter. Nothing. 

We send a request to you, I send a subpoena to you, and you give 

us nothing? These other four did. I am telling you, we will drag the 

IRS up here every single week if we have to. You are going to respond to the United States Congress. You are going to respond to 

the American people. You work for the American people. You are 

not going to just drag us around. Because you know what? If it was 

the other way around, if the IRS went after an individual, you 

wouldn’t put up with it. There is no way you would put up with 

this. 

We expect you to respond to requests from the United States 

Congress. We have a right to see it. We have a constitutional duty 

to perform our oversight responsibilities. And for you to not respond to this committee in a timely fashion by giving us an electronic copy, which is what you were supposed to do, which the 

other four figured out, is not appropriate. We don’t have that material, and we wanted it before the hearing. And I had to get a subpoena to drag you here, and it is wrong. 

I have heard personally from multiple FOIA requesters that they 

wait and they wait and they wait, and, when they finally get a response, the request is either flatly denied or the pages are blacked 

out. We saw examples of that yesterday. So why is this necessary? 

And there are some cases where you do have to redact material. 

I understand that. I understand that. I appreciate that. But the 

lack of consistency is just stunning. The time that it takes is just 

unbelievable. 

Department of Justice, as the FOIA litigator and the provider of 

agency-wide guidance, ought to be the model agency, but we know 

that it is not. The Department of Justice denied approximately 40 

percent of its FOIA requests in the fiscal year 2014. Three percent 

of FOIA requests were denied on the basis of exemptions. Thirtyseven percent of requests were denied for other reasons. Five percent of all requests were denied on the basis of claiming documents 

were, ‘‘not reasonably described.’’ 

DHS is drowning in FOIA requests and needs to ensure the right 

resources are put towards properly clearing these backlogged cases. 

Department of Homeland Security receives about one-third of all 


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FOIA requests and is responsible for about two-thirds of the Federal backlog. So it was particularly disappointing to see the DHS 

FOIA program in the GAO’s 2015 duplication report. Even the 

GAO has come in and said this is a terribly mismanaged, ill-executed system, so much so that there’s highlights in the GAO’s 2015 

duplication report. 

My disappointment grew yesterday when Lisette Garcia from the 

FOIA Research Center revealed to us the DHS has hired contractors for the primary purpose of closing, rather than completing, 

cases. We would like to explore that. 

Individuals requesting records from Homeland Security might 

hear from contractors multiple times inquiring about whether or 

not they are still interested in their requests. That always cracks 

me up, right? A citizen, person from the media, goes out of their 

way to put in a FOIA request; so much time goes by that the government comes back to them and says, are you still interested? 

That takes time and resources. 

And the State Department is as bad, if not worse, than DHS on 

FOIA compliance. The agency has open cases dating back for decades—decades. Last year, the State Department failed to fully respond to more than 65 percent of its requests. The Center for Effective Government graded 15 of the top FOIA agencies and gave the 

State Department an F on FOIA processing. 

The agencies before the committee today need to bring sunshine 

to their FOIA programs. Agency leadership has failed to make 

FOIA a priority, and that makes the job of the witnesses before the 

committee much more difficult, if not impossible. 

We know you have a tremendous amount of requests coming 

your direction. There are a lot of good people who work in your departments and agencies, and we thank them for their services. Not 

everything is bad. But it is our role and responsibility to understand how it really works, what you are up against, what you are 

dealing with in a very candid way so that we can help make it better and that we can understand it. And there undoubtedly have to 

be changes. My guess is you want to see some changes. We want 

to see some changes. So we want to ferret that out. 

We have heard from the people that are very critical, but you are 

the people who are right there on the front lines, and you represent 

hundreds and literally thousands of people who are trying to do 

their job and deal with the tensions that come from political persuasions that have been on both the Democrat and Republican side 

of the aisle. You have career professionals who have been there 

through lots of different organizations. We want to hear candidly 

from you what is working, what is not working. But give us candid 

information so we can help better understand it. That is all we ask 

today. 

We thank you again for your presence. 

And, at this time, I will now recognize the ranking member, Mr. 

Cummings, for his opening statement. 

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

thank you for holding these very important hearings on the Freedom of Information Act, which is the cornerstone of our Nation’s 

open-government laws. 

Thank you also to our agency witnesses for being with us today. 


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You do have a critical responsibility, which is to make Federal 

records available to the American public as effectively and efficiently as possible. You are also charged with implementing the directive President Obama issued on his first day in office, to implement a new presumption of openness that reverses the policy of 

withholding information embraced by the Bush administration. 

Your job is also extremely difficult and is getting harder. You 

and, by implication, the President are being blamed for the increase in FOIA backlogs. 

As we heard at our hearing yesterday, FOIA backlogs have increased in part as a result of cuts to agency budgets and the dwindling number of FOIA personnel forced to process record numbers 

of incoming requests. But we did not just only hear that. Mr. 

McCraw of The New York Times talked about a culture of unresponsiveness. And I hope that we will get to that and talk about 

that, because I agree with the chairman. In order for us to get to 

the bottom of this, we have to have an honest assessment of what 

is going on. 

There were a number of witnesses that came before us yesterday 

that talked about a fear of people who are dealing with the FOIA 

requests, honoring them the way they should be, because they are 

afraid to get in trouble. If that is the case, we need to hear about 

that. 

Now, going back to personnel, the number of FOIA requests skyrocketed from 2009 to 2014. In 2009, when President Obama took 

office, there were about 558,000 requests submitted to the Federal 

agencies. By 2014, that number rose to more than 714,000, a surge 

of 28 percent. That is quite a surge. 

On the other hand, the total number of full-time agency FOIA 

personnel dropped to its lowest point since President Obama took 

office. In 2009, the number of full-time FOIA staff at Federal agencies was 4,000. In 2014, that number dropped to 3,838, a decrease 

of about 4 percent. 

It seems obvious that Congress cannot continue to starve Federal 

agencies for resources through budget cuts, staffing reductions, sequestration, and government shutdowns and then blame those 

agencies for not being able to do their jobs effectively. 

But, again, I want to go back. I want us to not only deal with 

the personnel issues, but this whole culture that Mr. McCraw 

talked about of unresponsiveness, I want to deal with that, too, because I want the total picture so that we can be effective and efficient in trying to remedy this situation. 

If we want FOIA to work, we need to restore adequate funding, 

staffing, and training so agencies can handle the increasing workloads they will continue to face. That is another issue. Is there an 

issue of training? It is one thing to have personnel; it is another 

thing to have personnel that are properly trained. 

But this is not what House Republicans are doing. Today, right 

now, down the hall in the Appropriations Committee, Republicans 

are voting to withhold nearly $700 million—hello—$700 million 

from the State Department’s operational budget until it improves 

its document production processes. The operational budget includes 

the salaries for all—for all—of the State Department’s FOIA employees. 


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Let me say that again. Today, with a record number of FOIA requests and with record low FOIA staffing, the answer from the Republicans is that we are going to withhold two-thirds of a billion 

dollars, more than all State Department FOIA staff salaries combined. How in the world is this supposed to help? It simply does 

not make sense. 

We know that there are problems with FOIA. We know there are 

delays. We know that we must do better. But it is hard to imagine 

a more counterproductive attack on the FOIA process. 

I also take issue with the claims that President Obama has not 

been one of the most aggressive and forward-thinking Presidents in 

the history in pressing for more open government. I have often said 

that he would never get credit for anything. If things go wrong, 

they blame him; if things go right, he gets no credit. Those who try 

to argue that President Bush took the same kind of unprecedented 

transparency actions as President Obama must have amnesia. 

There simply is no comparison—none. 

Beyond ordering the presumption of openness for FOIA, the 

Obama administration issued a national action plan to establish a 

consolidated FOIA portal and enhance training for FOIA professionals. President Obama did that. It established a FOIA advisory 

committee to improve implementation and increase proactive disclosures of government information. President Obama did that. The 

administration implemented a new policy of disclosing White 

House visitor records. President Obama did that. It established 

ethics.data.gov, which posts lobbying disclosure reports, travel reports, and Federal Elections Commission filings all in one place, 

and it has made enormous amounts of government information 

available through data.gov. That is right, President Obama did 

that. 

Finally, I suspect that some of my colleagues will continue their 

focus on former Secretary of State Hillary Clinton and her emails, 

so let’s review the facts. 

On December 5, 2014, Secretary Clinton provided more than 

30,000—30,000—emails, totaling about 55,000 pages, to the State 

Department. The Department has those emails and is currently reviewing them to make them available to the public under FOIA. 

This is a sharp contrast to former Secretary of State Colin Powell, who admitted that he used a personal email account for official 

business all the time. Unlike Secretary Clinton, Secretary Powell 

did not—did not—preserve any of his official emails from his personal account, and he did not turn them over to the State Department. 

I am not naive; I understand the Republican focus is on Hillary 

Clinton as she runs for President. But if we really want to review 

compliance with FOIA, if we really want to review it and straighten it out and make it right and have the FOIA laws do what they 

are supposed to do and if we really want to be most effective and 

efficient, we should not do so selectively by ignoring facts based on 

political expediency. As I have often said, we are better than that. 

To conclude, there is a major—a major—bipartisan step we can 

take to improve FOIA now. In February, I joined with Representative Issa—yeah, that is what I said—I joined with former Chairman Issa, our former chairman, on a bipartisan basis to introduce 


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the FOIA Oversight and Implementation Act. We passed it out of 

our committee unanimously, out of this committee, unanimously, 

several months ago. And I hope we can move forward in a bipartisan way to pass this bill. 

Now, the chairman said yesterday to me that we are going to see 

what we can do to work that out, and what we need from you are 

suggestions. I am sure maybe all of you are familiar with 653, and 

if there are things that you think we can do to improve that bill 

to make it so that it can be more effective and efficient and that 

you can do your jobs better, then we want to know it. 

Ladies and gentlemen, we can go around and around and around 

and around and around in circles, and we will be talking about this 

same stuff 10 years from now, and the backlog will be even greater. 

And so I look forward to hearing what you all have to say. Again, 

give us the good, the bad, and the ugly so that we can now effectively address this issue. 

And, Mr. Chairman, I really thank you for your indulgence. With 

that, I yield back. 

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 

witnesses. Let me introduce them. 

Ms. Joyce Barr is the Chief FOIA Officer with the Department 

of State and has been involved in the FOIA process for the last 4 

years. Ms. Barr was confirmed as the Assistant Secretary for Administration in December of 2011. As Assistant Secretary, she is 

responsible for the day-to-day administration of a variety of functions, ranging from logistics, records management, privacy programs, the Working Capital Fund, as well as Presidential travel. 

We appreciate you being here. 

Ms. Melanie Anne Pustay—did I say that properly?—is the Director of the Office of Information Policy at the Department of Justice since 2007 and has worked with FOIA for at least the last 12 

years. The Office of Information Policy, sometimes referred to as 

OIP, is responsible for developing guidance for executive branch 

agencies on the Freedom of Information Act. OIP is charged with 

ensuring the President’s FOIA memorandum and the Attorney 

General’s FOIA guidance are fully implemented across the government. Before becoming Director, she served 8 years as the Deputy 

Director for OIP, where she was responsible for the Department’s 

responses to access requests made to the Department’s senior leadership offices. 

Ms. Karen Neuman serves as the chief privacy officer and Chief 

FOIA Officer within the Department of Homeland Security. In her 

role as chief privacy officer, Ms. Neuman is responsible for evaluating department-wide programs, systems, technologies, and rulemaking for potential privacy impacts. She has extensive expertise 

in privacy law that helped inform privacy policy development both 

within the Department and in collaboration with the rest of Federal Government. She centralizes both FOIA and Privacy Act operations to provide policy and programmatic oversight and support 

implementation across the Department. 


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Mr. Brodi Fontenot serves as the Chief FOIA Officer and Assistant Secretary for Management in the Department of Treasury. He 

has served as the Chief FOIA Officer since January—for the last— 

which year did you become that? 

Mr. FONTENOT. Just this year. 

Chairman CHAFFETZ. Just this year. I wanted to make sure I had 

that right. January of this year. 

Mr. Fontenot serves as the Secretary of Treasury on the development and execution of treasury’s budget and strategic plans and 

the internal management of the Department and its bureaus. In 

January 2014, President Obama nominated him as the Treasury’s 

Chief Financial Officer. 

Ms. Mary Howard is the Director of the IRS’ Privacy, Governmental Liaison, and Disclosure Division in the United States Department of Treasury. She has served in this role since January of 

2014. In this role, she is responsible for managing a multifaceted 

privacy program and ensuring compliance with the Privacy Act, the 

Freedom of Information Act, and the Internal Revenue Code known 

as 6103. Ms. Howard represents the IRS’ interests in identity theft, 

information protection, disclosure, and data-sharing. Ms. Howard 

began her career at the IRS in 1988 as a revenue agent and has 

served in various roles throughout the agency and throughout her 

career. 

We appreciate you all being here. 

If you would please rise and raise your right hands, pursuant to 

committee rules, the witnesses are to be sworn before they testify. 

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 answered in the affirmative. 

As you take your seat, we would ask that you limit your testimony to 5 minutes. Your full written statement will be made part 

of the record. 

And, with that, we will now start with Ms. Barr, and you are 

now recognized for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF JOYCE A. BARR 

Ms. BARR. Thank you, Chairman Chaffetz, Ranking Member 

Cummings, and members of the committee. Good morning. Thank 

you for the invitation to appear before you today. 

My name is Joyce Barr, and I serve as the Assistant Secretary 

for Administration as well as Chief FOIA Officer for the State Department. I am a career Foreign Service officer, with over 35 years 

of experience serving around the world. 

Thank you for your interest in and advocacy for improving transparency to the public. We share that goal at the Department and 

work every day to achieve it. 

In addition to providing a range of support services around the 

world, the Bureau of Administration is also responsible for responding to requests under FOIA as well as managing and mainVerDate Sep 11 2014 14:05 Jan 04, 2017 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 F:\22472.TXT APRIL

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taining official department records. The State Department is committed to openness. It is critical to ensuring the public trust and 

to promoting public collaboration with the U.S. Government. 

However, meeting our commitment to openness is very challenging. We have a large backlog of over 16,000 FOIA requests. We 

know this backlog is unacceptable and are working to reduce it. 

Last year, we achieved a nearly 23-percent reduction in our appeals backlog by streamlining case processing. We made progress; 

more is needed. 

The backlog is due to several factors. Our caseload increased over 

300 percent since 2008. In fiscal year 2008, the Department received fewer than 6,000 new FOIA requests, but in fiscal year 

2014, we received nearly 20,000. Since the beginning of this fiscal 

year, we have already received over 15,000 new requests. 

Second, many of these cases are increasingly complex. Other national security agencies are exempt from release of some information under the FOIA. As a result, requesters often come only to the 

Department to request information on any and all national security 

issues. The Department is often the public’s first and only destination for documents on these issues. 

These complex requests require multiple searches throughout 

many of our 285 missions across the globe. They involve the review 

of classified or highly sensitive materials and require coordination 

with other Federal agencies. They can generate large amounts of 

material that must be reviewed by State and interagency subjectmatter experts across the Federal Government. 

We receive many complaints about delays, but our goal is to do 

everything we can to complete each request as soon as possible. 

Secretary Kerry recently reinforced our commitment to transparency in his March 25 letter to our inspector general. In that letter, he recognized the work that has already been done and noted 

the Department is acting on a number of challenges to meet its 

preservation and transparency obligations. The Secretary asked the 

inspector general to ensure we are doing everything we can to improve and to recommend concrete steps that we take to do so. 

I am here as the Department’s senior FOIA official to assure you 

that we have committed to working cooperatively with the IG with 

his review and any recommendations that may follow. 

My testimony for the record includes information about related 

issues, such as our FOIA Web site and the role we play in helping 

the public get access to information from Presidential libraries. 

Again, the Department of State is committed to public access to 

information. 

Mr. Chairman, I thank the committee for the opportunity to testify today and would be pleased to address questions that you or 

any other member of the committee may have on FOIA within the 

State Department. Thank you. 

[prepared statement of Ms. Barr follows:] 


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AKING-6430 with DISTILLERInsert offset folio 1 here 22472.001

Statement of 

Joyce Barr 

Assistant Secretary of Administration 

U.S. Department of State 

Before the 

House Committee on Oversight and Government Reform 

June 3, 2015 

Page 1 

Chairman Chaffetz, Ranking Member Cummings, and Members of the Committee, 

Good morning. 

Thank you for the invitation to appear before you today. My name is Joyce Barr 

and I serve as the Assistant Secretary for Administration, as well as Chief FOIA 

Officer for the Department of State. I have been a member of the Foreign Service 

for over 35 years, serving in posts around the world, including an assignment as 

U.S. Ambassador to the Republic of Namibia. Thank you for your interest in and 

advocacy for improving transparency to the public. We share that goal at the 

Department and work every day to achieve it. 

The Bureau of Administration provides a range of services to our embassies and 

facilities around the world, including property management, publishing and library 

services, contracting and procurement, travel and transportation. 
11 


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Page 2 

Another part of our mission is to respond to requests under the Freedom of 

Information Act, as well as to manage and maintain official records at the 

Department of State. I appreciate the opportunity to provide an overview of the 

State Department's ongoing efforts to improve our FOIA processing and 

administration. 

The State Department is committed to openness. We recognize that openness is 

critical to ensuring the public trust, as well as to promoting public participation in 

and collaboration with the U.S. Government. Therefore, we believe that 

transparency will make the Department stronger- it will strengthen our ability to 

achieve progress in U.S. foreign policy and national security, while promoting 

efficiency and effectiveness in the important work we do. This is why we continue 

to look for ways to improve our openness to the public, solicit greater feedback 

through public engagements on transparency issues, and encourage the public to 

participate in the business of U.S. foreign policy. 

That said, meeting our commitment to openness is very challenging. As you may 

already know the State Department is cunently facing a large backlog of over 

16,000 FOIA requests. We recognize this backlog is unacceptable, and are 
12 


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Page 3 

working to reduce it. In Fiscal Year 2014, we achieved a nearly 23 percent 

reduction in our appeals backlog, by finding ways to streamline our case 

processing. While we've made progress in reducing our backlog, we are seeking 

to make additional strides to reduce this further. 

I should note there are several factors that contribute to this backlog. First, we are 

struggling to keep up with a large increase in FOIA requests. Since 2008, our 

case load has increased over 300 percent. In Fiscal Year 2008, the State 

Department received fewer than 6,000 new FOIA requests. In Fiscal Year 2014, 

we received nearly 20,000. Since the beginning of this fiscal year in October, we 

have already received over 15,000 new requests. 

Second, many of these cases are increasingly complex. The State Department is 

the public's first, and often the only, stop for information and documents relating 

to National Security issues. Other national security agencies are exempt from 

release of some information under the FOIA. As a result, requesters often come 

only to the Department to request information on any and all national security 

issues. These requests are often a mixture of complex subject matters regarding 

terrorism, wars, foreign government relations, security, diplomacy- and something 

we have seen more of recently- pending litigation against the U.S. Government. 
13 


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Page 4 

These complex subject matters require multiple searches throughout many of our 

275 Missions across the globe, often involving the review of classified or highly 

sensitive materials, as well as coordination with other federal agencies. In many of 

these cases, searches locate voluminous amounts of paper and electronic materials 

that must be reviewed by State and interagency subject matter experts at various 

agencies in the U.S. Govemment. Given that FOIA requests to the Department 

often relate to contemporary topics, our FOIA team must consult within State and 

with other interagency subject matter experts regarding sensitivities and whether 

the release of the information would harm U.S. national security, or potentially 

damage relations with a foreign country. 

To assist in addressing both current FOIA requests and questions about older and 

pending requests, the State Department has a dedicated FOIA Public Liaison team 

working hard to answer questions and respond to queries about the status of 

specific requests. The most common complaint we receive from the public is 

related to delays in receiving timely responses. Not surprisingly, as the number of 

FOIA requests has increased, so has the number of public inquiries regarding the 

status of those requests, and we receive such inquiries on a daily basis. Our goal 
14 


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Page 5 

is to do everything we can to complete each request as quickly as possible, with as 

much responsive information as possible. 

You may already be aware that Secretary Kerry recently reinforced this point with 

his letter of March 25 to our Inspector General. In that letter, the Secretary 

explained that he recognizes the work that has already been done and that the 

Department is already acting on a number of challenges associated with meeting its 

preservation and transparency obligations. The Secretary asked for an outside look 

by the Inspector General to ensure we are doing everything we can to improve and 

to recommend concrete steps that we can take to do so. 

I am here as the Department's senior FOIA official, to assure you that we arc 

committed to continuing efforts to improve and work cooperatively with the 

Inspector General with his review and any recommendations that may follow. The 

Department's FOIA experts have already met with IG review team. 

I would like to also take this opportunity to share with the Committee some of the 

unique State Dcpmiment activities, in addition to FOIA, that inform the public 

about foreign policy, diplomatic relations, and State operations through the release 

of literally millions of pages of documents. 
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Page 6 

Website 

We are very proud of our current website and urge everyone to visit 

FOIA.state.gov. Some of you and your staff may have already visited this website, 

but if you have not done so, I highly recommend taking a look. For the past few 

years, we have been posting completed FOIA productions on that site in situations 

where we have received more than one request for the same information. The site 

is searchable by key word, date, region, etc. 

I'm told the State Department was the first U.S. Government agency to initiate a 

FOIA website nearly two decades ago. Since then, we have continuously striven to 

enhance our FOIA website, often working with constituency requester groups to 

design a site that provided what they needed and wanted. In fact, the National 

Security Archive has publicly noted that the State Department has one of the best 

FOIA websites of all federal agencies. 1 Today, we have an interactive site that 

provides a wealth of information to the public, including the ability to search and 

access thousands of previously released documents. 

Opening the Historical Record of US Foreign Policy 

1 See http:t nsarchive.gwu.edu/NSAEBB/:'-ISAEBB505' 
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Page 7 

Decades before the Executive Order mandate, the Department established a 

program for the declassification review of its most sensitive permanent historical 

records, transferring them to the National Archives where they are available to the 

public. During the past five years alone, we have declassified nearly 26 million 

pages, bringing the long term total to literally hundreds of millions of pages of 

declassified foreign policy records available to the public at the National 

Archives. More than 95 percent of the entire collection was declassified for public 

access, with the remaining percentage representing mostly the equities of other 

agencies. 

There are 2.3 million permanent historical records available online from State's 

corporate electronic archive, the oldest (dating back to 1973) and only enterprisewide collection of substantive electronic records documenting a cabinet agency's 

mission and activities in the Federal govemment. Millions of cables, diplomatic 

notes, and other important foreign policy documentation are available online. 

These actions are consistent with the Department's objective to make available to 

the American taxpayer, in keeping with FOIA principles, the maximum amount of 

documents related to our country's foreign policy activities. 

Foreign Relations of the United States {FRUS) 
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Page 8 

The FRUS series is the official documentary historical story of major U.S. foreign 

policy events and significant diplomatic activities- and the decision making 

sun-ounding them. FRUS volumes contain documents compiled by the Office of 

the Historian not only from the State Department's archives, but from the 

Presidential Libraries, the Depmtment of Defense, the National Security Council, 

the intelligence community, and USAID. The series also provides insightful 

documentary editing. Since the inception of the FRUS in 1861 under Secretary 

Seward, the State Department has been informing citizens about formerly 

classified operations and events in our foreign relations- and doing so proactively 

long before any other entity in the Federal govemment was releasing such 

information. Since its inception, the Department has published 501 volumes; with 

42 volumes published in the past five years. 

Presidential Libraries 

There are 14 Presidential Libraries open to the public that not only provide unique 

insight into the personal lives of our presidents, but also serve as a collection of the 

records related to an administration. The public can request access to these 

records. The State Department is the largest single equity holder of records in the 

Presidential Library system. During the past five years we have processed over 

3,600 requests from the Libraries, reviewing over 51,000 pages for release. 
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Page 9 

Special Access under Executive Order 13526 and Pre-Publication Review 

Executive Order 13526 provides former presidential appointees access to records 

originated, reviewed, signed or received during their tenure in office. It also 

allows for them to designate research assistants for this purpose. Many of the 

Department's former principal of1icers, including former secretaries, request access 

to publish books covering their respective tenure in office, thus providing unique 

insights into events, decision making, people, and diplomacy. As a condition of 

this access, the State Department reviews manuscripts produced as the result of this 

access to ensure that there is no classified information in the published product. 

In summary, the Department of State is committed to the public's access to 

information. We are working every day to improve our efforts in this regard. 

Again, Mr. Chairman, thank you for the opportunity to testifY before you today. 

would be pleased to address questions you or any other Member of the Committee 

may have on FOIA within the State Department. 
19 

Chairman CHAFFETZ. Thank you. I appreciate it. 

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

If you can make sure that microphone is kind of pulled straight 

and tight to your—up there. If you straighten it out and turn it on, 

that would be great. 

Ms. PUSTAY. Okay. 

Chairman CHAFFETZ. Thank you. 

STATEMENT OF MELANIE ANNE PUSTAY 

Ms. PUSTAY. Are we good? 

Good morning, Chairman and Ranking Member Cummings and 

members of the committee. I am pleased to be here today to discuss 

the FOIA and the Department of Justice’s ongoing efforts to encourage agency compliance with a very important law. 

There are several areas of success that I’d like to highlight today. 

Despite receiving continued record high numbers of FOIA requests 

and operating at the lowest staffing levels in the past 6 fiscal 

years, agencies have continued to find ways to improve their FOIA 

administration. Seventy-two out of the 100 agencies subject to the 

FOIA ended the fiscal year with low backlogs of fewer than 100 requests. Processing nearly 650,000 requests, the government also 

continued to maintain a high release rate of over 91 percent. 

Agencies overall also continued to improve their processing 

times. For a number of years, OIP has encouraged agencies to focus 

on their simple track requests, with a goal of processing those requests within an average of 20 working days. And I’m very pleased 

to report that this past fiscal year the government’s overall average 

was 20.5 days for those simple track requests. 

And there’s also many other achievements that simply can’t be 

captured by statistics. Agencies continue to post a wide variety of 

information online in open formats. They’re making discretionary 

releases of otherwise exempt information. They’re utilizing technology to help improve FOIA administration. 

The Department of Justice continued to work diligently throughout the year to both encourage and assist agencies in their compliance with the FOIA. I firmly believe that it’s vital that FOIA professionals have a complete understanding of the law’s legal requirements and the many policy considerations that contribute to successful FOIA administration. So, as a result, one of the primary 

ways my office encourages compliance is through the offering of a 

range of government-wide training programs and the issuance of 

policy guidance on FOIA. 

In 2014 alone, my office provided training to thousands of individuals on a range of topics, including comprehensive guidance on 

the FOIA’s proactive disclosure provisions. That guidance included 

strategies for identifying frequently requested records, and it also 

encourages agencies to post records even before receipt of a single 

request, in accordance with the President’s and Attorney General’s 

FOIA directives. 

And I’m particularly pleased to highlight for you today the substantial progress that we have made on a number of initiatives to 

modernize the FOIA. 

First, in collaboration with the 18F team at GSA, we’ve been 

working on the creation of a consolidated FOIA portal that will be 


AKING-6430 with DISTILLER
20 

added to the resources that are available on FOIA.gov. This service 

will allow the public to make a request to any agency from a single 

Web site and will also include additional tools to improve the customer experience. 

Second, OIP has been working on the potential content of a core 

FOIA regulation. We formed an interagency task force to tackle 

this project. We’ve met with civil society organizations to get their 

input. And our team is actually now hard at work drafting language for this important new initiative. We look forward to our engagement with both civil society and our agency colleagues as we 

work forward on that project. 

Now, third, in an effort to improve internal best practices, we 

launched what we’re calling a series of best practices workshops. 

And we started there with the very important topic of improving 

timeliness and reducing backlogs. These workshops provide a 

unique opportunity for agencies to learn from one another and to 

apply innovative strategies more broadly across the government. 

And then, finally, just this past March, I’m very pleased that we 

completed our commitment to enhance FOIA training by making 

standard e-learning training resources available to all Federal employees. Embracing Attorney General Holder’s message that FOIA 

is everyone’s responsibility, these new training resources target the 

entire spectrum of Federal employees, from the newly arrived intern to the senior executive. These training resources are available 

to all agency personnel anywhere in the world and at no cost. They 

address the FOIA’s many procedural and substantive requirements, but they also emphasize the importance of good communication with requesters and good customer service—very important 

topics. Given how important all of this is to the successful implementation of the FOIA, I’m very proud that OIP can provide these 

resources to all government officials across the world. 

So, in closing, in the face of many challenges this past fiscal year, 

agencies have achieved successes in many areas. And while we certainly believe there’s more work to be done and we’re continually 

looking for ways to improve the process, we’re proud of what we’ve 

done so far, and we look forward to working with the committee 

as we jointly pursue the goal of improving access to information. 

Thank you. 

[Prepared statement of Ms. Pustay follows:] 


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illeparlment nf Ju~tite 

STATEMENT OF 

MELANIE ANN PUSTAY 

DIRECTOR 

OFFICE OF INFORMATION POLICY 

BEFORE THE 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

U.S. HOUSE OF REPRESENTATIVES 

AT A HEARING ENTITLED 

"ENSURING AGENCY COMPLIANCE WITH THE FREEDOM OF 

INFORMATION ACT (FOIA) PART II" 

PRESENTED 

JUNE3, 2015 
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Melanie Ann Pustay 

Director 

Office of Information Policy 

Before the Committee on Oversight and Government Reform 

Washington, D.C. 

June 3, 2015 

Good moming, Chairman Chaffetz. Ranking Member Cummings, and Members of the 

Committee. I am pleased to be here today to discuss the Freedom of Infonnation Act and the 

Department of Justice's ongoing efforts to encourage agency compliance with the statute as well 

as with President Obama's Memorandum on the FOIA and fom1er Attomey General Holder's 

2009 FOIA Guidelines. The Department of Justice is strongly committed to the President's and 

Attomey General's vision of open government. My office, the Otrice oflnformation Policy 

(OIP), has undertaken a range of initiatives this past year designed to assist agencies in 

improving their FOIA administration. Today I would like to highlight some of those efforts, 

provide an overview of key FOIA statistics and agency successes from this past fiscal year, and 

outline some of the exciting new initiatives we are undertaking that are designed to help further 

improve FOIA in the years ahead. 

OIP takes very seriously its obligation to encourage agency compliance with the FOIA. 

We believe that the foundation of any FOIA program are personnel who have a complete 

understanding of the FOIA's legal requirements and the policy considerations set out in the 

President's and Attomey General's 2009 FOIA Memoranda. Accordingly, one of the primary 

ways OIP encourages compliance with the FOIA is through the offering of a range of 

govemmcnt-wide training programs and the issuance of policy guidance that assists agencies in 

their implementation of the law. In 2014 alone, my Office provided training to thousands of 

individuals through a variety of training programs. including seventy-six specialized 

presentations given at the request of various agencies, which were designed to meet their specific 

FOIA training needs. 

In addition to providing training on all aspects of the FOIA, OIP also issues policy 

guidance to agencies on the proper implementation of the law and the President's and Attorney 

General's 2009 FOIA Memoranda. All of the guidance issued by O!P can be found on the 

Guidance page of our website. Just this past March, OIP issued new guidance addressing 

proactive disclosures. In this guidance, OIP emphasized that when agencies make proactive 

disclosures they are enhancing transparency by ensuring that certain key information about the 

operations and activities of the government are readily and ct11cicntly made available to 

everyone. In addition to discussing the FOIA's proactive disclosure requirements, the new 

guidance addresses ways in which agencies can take further steps to increase proactive 

disclosures in keeping with the President's and Attorney General's 2009 FOIA directives. The 

guidance provides inforn1ation on methods of disclosure, strategies for identifying "frequently 

requested" records, and tips on ensuring that posted infonnation is usable. To assist agencies 

even further, OIP included as part of its guidance a "Proactive Disclosure Checklist." 

In 2014 OIP issued a series of guidance to agencies on ensuring timely detcm1inations 

on n.xJuests f(1r expedited processing. reducing backlogs and improving timeliness, and providing 
23 


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status information to requesters. As in years past, OIP also issued guidance for further 

improvement based on our review and assessment of agencies' 2014 ChiefFO lA Officer 

Reports. That guidance highlighted the importance of agencies: 1) ensuring that their FOlA 

professionals receive substantive FOlA training, 2) adding distinct steps to their FOIA processes 

to identify potential discretionary disclosures, and 3) taking an active approach to making 

proactive disclosures. 

As you know, this past March we celebrated the sixth anniversary of former Attorney 

General Holder's FOIA Guidelines. Issued during Sunshine Week on March 19, 2009, the 

Attorney General's FOIA Guidelines address the presumption of openness that the President 

called for in his FOIA Memorandum, the necessity for agencies to create and maintain an 

effective system for responding to requests, and the need to improve timeliness and to work to 

reduce backlogs. The Guidelines also direct agencies to promptly and proactively make 

information available and they emphasize the importance of agencies using "modem technology 

to inform citizens about what is known and done by their Government." Finally, stressing the 

critical role played by agency ChiefFO lA Officers in improving FOIA perfonnance, the FOIA 

Guidelines direct all ChiefFO lA Officers to review their agencies' FOIA administration each 

year and to report to the Department of Justice on the steps taken to achieve improved 

transparency. 

OIP uses the ChiefFOIA Officer Reports as a vital tool in our efforts to promote 

accountability and encourage agency compliance with the FOIA and the President's and Attorney 

General's 2009 FOIA Memoranda. Each year OIP has developed guidelines for agency Chief 

FOIA Officer Reports. While we have maintained five key topical areas for agencies to address, 

each year OIP has modified the specific questions asked of agencies to build on the responses of 

previous years. As a result, the Chief FOIA Officer Reports have become a valuable resource for 

tracking and documenting agencies' eft<.)rtS to improve all aspects of their FOIA administration 

over the past six years. I highly recommend that the Committee review these Reports, which are 

available at http://www.justice.gov/oip/chief-foia-officer-reports-2015, to see the broad array of 

activities that agencies have undertaken to improve their FOIA administration. 

In 2014, tor the fourth straight year, 011' conducted a fom1al assessment of agencies' 

FOIA administration by scoring all ninety-nine agencies that are subject to the FOIA on a series 

of milestones tied to each of the five key areas addressed in the Attorney General's 2009 FOIA 

Guidelines. OIP uses a wide range of milestones to capture a broad spectrum ofFOIA activity, 

from applying the presumption of openness, to increasing use of technology and improving 

timeliness. We post the assessment each year on the Department's website, along with a 

summary of agency activity and guidance for further improvement. As agency implementation 

of the Attorney General's 2009 FOIA Guidelines has matured, OIP has continually refined the 

milestones that arc assessed. We have also engaged with civil society organizations to identify 

new milestones to he included in the assessment. This collaboration has been very productive 

and we greatly appreciate the ideas and suggestions we have received. For the 2014 assessment 

Oil' used twenty-four separate milestones. We expanded our scoring system for those 

milestones from three scores to five, gave overall scores for each assessed section, and added 

natTativc infonnation to provide greater context to the milestones. 

2 
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We are cutTently in the process of reviewing and assessing agencies' 2015 ChiefFOIA 

Officer Reports, which were posted this past March. Based on our initial review of those reports 

and our review of agency Annual FOIA Reports for Fiscal Year 2014, it is clear that agencies 

have persevered through a difficult year of tight resources in an effort to meet the ever-increasing 

demands of their FOIA administration. This past fiscal year marks another record high in tenns 

of the numbers of requests received by agencies. During Fiscal Year 2014, agencies received 

714,231 requests, which rose from the previous high of 704,394 requests received in Fiscal Year 

2013. Since Fiscal Year 2010, the number ofFOIA requests received by the government has 

increased each year. 

750,000 

700,000 

650,000 

600,000 

550,000 

500,000 

450,000 

400,000 

S50,000 

soo,ooo 

Total Number of Requests Received 

Fiscal Year Fiscal Year Fiscal Year Fiscal Year Fiscal Year 

2010 2011 2012 2013 20H 

In addition to the ever-increasing numbers of incoming requests, Fiscal Year 2014 posed 

other challenges for agencies' administration of the FOIA as well. During Fiscal Year 2014, the 

government overall reported its lowest staffing levels dedicated to FOIA in the past six fiscal 

years and agency FOIA offices began the year with a nearly three-week government shutdown 

during which time no requests could be processed. Taking into account that the government 

processed 647,142 requests during Fiscal Year 2014, we roughly estimate that this three-week 

period could have resulted in over 32,000 more FOIA requests being processed. 

As a result of these challenges and the record high number of incoming requests, the 

government's overall backlog of pending requests increased. Given the importance of reducing 

backlogs, in2014 for the first time my Office directed any agency that had a backlog of more 

than 1,000 pending requests which had not reduced that backlog by the end of the fiscal year, to 

include in its ChiefFOIA Officer Report a plan for achieving backlog reduction. For the 2015 

ChiefFOIA Officer Reports, agencies were required to respond to this question again, and those 

agencies that formulated plans in 2014 were asked to describe their efforts in implementing thos( 

plans. 

3 
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While there were a number of challenges that agencies worked through during Fiscal 

Y car 2014, there were also several areas of success that I am pleased to highlight. First, the 

majority of agencies (72 out of I 00) were able to maintain low backlogs of fewer than l 00 

requests. Notably, fifty-nine of these agencies had a backlog of!ess than twenty requests, 

including twenty-nine that reported having no backlog at all. 

Fm1her, when processing requests for disclosure, the government continued to maintain a 

high release rate of over 91%, marking the sixth straight year in which the government's release 

rate was above 90%. This means that records were released, either in full or in part, in response 

to 91% of requests where the government was in a position to make a disclosure determination. 

Notably, the government also continued to improve its processing times for both simple and 

complex track requests. OIP has for a number of years focused on agency efforts to process 

simple track requests within an average of twenty working days. This past fiscal year, the 

government overall reported an average of 20.51 days to process its simple track requests. 

Agencies also continued to make marked improvements in a number of areas that are not 

easily captured by statistics. As evidenced by the 2015 Chief FOIA Officer Reports, as well as 

from prior years' Reports, agencies continue to embrace the President's and Attorney General's 

2009 FOIA directives by proactively posting information online. In addition to the various 

examples of proactive disclosures noted in agency ChiefFOIA Officer Reports, many agencies 

also describe the steps they have taken to make the information they post online more useful to 

the public. More and more agencies are posting infonnation in open fonnats whenever possible 

and taking steps to make the information easier to find on their websites. In addition, agencies 

are taking steps to publicize their proactive disclosures on social media and other platfonns to 

ensure that the public is aware of their availability. These efforts fully embrace the President's 

message for agencies to "usc modern technology to inforn1 citizcus about what is known and 

done by their Government." 

In response to the Attorney General's 2009 FOIA Guidelines, agencies have also 

continued to look tor opportunities to make discretionary releases of information when 

processing records. A range of examples of discretionary releases made by agencies just this 

past year can be found in the 2015 ChicfFOIA Officer Reports. These examples include 

infonnation that could have been withheld under Exemptions 2, 5, 7(0), and 7(E} ofthc FOIA, 

with Exemption 5 material fonning the majority of the discretionary releases. Of course, 

exemption usc will fluctuate from year to year depending on the types of records that are 

requested and the numbers of requests that are processed. Further, the number of times an 

agency uses exemptions in responding to a request does not con·espond with the volume of 

infommtion withheld. Keeping this in mind, it is still noteworthy that during Fiscal Year 2014, 

the government overall reduced by 14% the number of times it cited to Exemption 5. As has 

been the case for many years, the most cited exemptions in Fiscal Year 2014 were the FOlA's 

privacy exemptions, Exemptions 6 & 7(C). When exemptions were used by agencies, the 

privacy exemptions were used 53% of the time. Notably, the number of times Exemption 5 was 

cited amounts to less than 13% of the govemment's entire usage ofFOIA exemptions. 

4 
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As to Exemption 2, the Department of Justice has been working with a number of 

agencies impacted by the Supreme Court's ruling in Milner v. Department (!{the Navy, 131 S. 

Ct. 1259 (2011), which substantially nan·owed the scope of that exemption. Through those 

ct1orts we developed a thoughtful legislative proposal that does not sweep too broadly, but at the 

same time provides sutncient protection against circumvention of the law and the safeguarding 

of our national security. That proposal was recently submitted to Congress by the Department of 

Defense as part of its FY 16 Defense Authorization Act proposaL 

In addition to enhancing transparency through proactive disclosures and discretionary 

releases of otherwise exempt material, agencies continue to look for ways to increase their use of 

technology for the benefit of FOIA administration. As agencies receive more requests every 

year it has become even more important to find efficiencies through the usc of new technologies. 

One area in which we have found technology to be particularly beneficial is the use of tools and 

applications that assist with the core tasks of processing FOIA requests, such as technology that 

assists in the search and review of documents, shared platforms that allow for simultaneous 

review and comment on documents, and electronic capabilities that automatically identify 

duplicative materiaL Automating many of the intemal processes for handling FOIA requests can 

bring great benefits in et1iciency. While some of these tools can sometimes be difficult for 

agencies to acquire, many agencies have reported that they are taking steps to utilize more 

advanced tools in order to build et1iciencies in their FOIA programs. 

As you can see, while facing many challenges, agencies have found a number of ways to 

improve their FOIA administration. I am particularly pleased to highlight for you today the 

substantial progress we have made on five initiatives to further modernize FOIA as part of our 

commitments under the United States' Second Open Government National Action Plan (NAP). 

Our first initiative is the creation of a consolidated online FOIA service that will allow the public 

to make a request to any agency fi·om a single website and that will include additional tools to 

improve the customer experience. OIP has been working closely with the General Services 

Administration's 18F Team on this commitment and the development of a new resource to be 

added to the features available on FOlA.gov, the government's comprehensive resource on 

FOIA. 

As you know, the Department launched FOIA.gov during Sunshine Week 2011 as the 

flagship initiative under our first Open Government Plan. FOIA.gov provides the public 

educational material about how the FOIA works, where to make requests, and what to expect 

through the FOIA process. Explanatory videos are embedded into the site and there is a section 

addressing frequently asked questions. The videos alone have received well over 2.5 million 

visitors. We also include a glossary of FOIA terms and list the contact infonnation for each 

agency's FOIA Requester Service Centers and FOIA Public Liaisons. The site includes links to 

the over I 00 FOIA offices that usc online portals, making it easier for requesters to begin their 

request process right from FO!A.gov. 

In addition, FOIA.gov serves as a visual report card on agency compliance with the FOIA 

by graphically displaying all of the data from agency Annual FOIA Reports and allowing users 

to compare the data by agency and over time. The site alerts the public to FOIA news posted by 

the Department of Justice and spotlights examples ofFOlA releases made by agencies. As an 

5 
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additional resource, the site encourages the public to first look to see what is already publicly 

available on agency websitcs before submitting a FOIA request. A search feature is provided to 

the public where they can use keywords to find records posted on any government website. With 

our continued focus on encouraging agencies to post documents proactively, enhancing the 

public's ability to locate that posted infonnation is critical. We look forward to continuing to 

enhance the features on FOIA.gov to further improve the customer experience. 

The second NAP initiative that we have been working on focuses on reviewing the 

feasibility and potential content of a core FOIA regulation. There are many steps in the FOIA 

process that are generally shared across agencies. By standardizing these common aspects we 

can potentially make it easier for requesters to understand the FOIA process while at the same 

time making it easier for agencies to publish new regulations. In 2014, OIP launched this project 

by meeting with both agencies and civil society to get their initial input from the very start. We 

then formed an interagency taskforcc which began the process of exploring the streamlining of 

agency FOIA regulations. As part of our process we have analyzed current agency FOIA 

regulations in comparison to a "model FOIA regulation" provided to us by civil society. Based 

on that analysis, our team is now hard at work drafting initial language for a potential common 

regulation. We look forward to continuing our engagement with civil society as we collaborate 

on this project. 

Our third NAP initiative is designed to improve internal agency FOlA processes by 

leveraging best practices and successful strategies across the govemment. In 2014, OIP 

launched a series of Best Practices Workshops. Each workshop focused on a specific topic in 

FOIA administration where agency representatives with particular success in that area shared 

their best practices and successful strategies. These workshops, which we will continue in the 

years ahead, provide a unique opportunity for agencies to learn from each other and to apply 

innovative solutions more broadly across the government. After each workshop my Office 

published the best practices discussed, as well as any related guidance and resources, on a 

designated page of our website as a reference for all agencies. Since its launch, we have had five 

very successful workshops on the topics of reducing backlogs and improving timeliness, 

proactive disclosures, implementing best practices observed by requesters, utilizing technology 

to improve FOIA processing, and FOIA customer service. The series has been well received by 

agencies and we look forward to continuing our workshops with new topics in 2015. 

As part of a fourth NAP initiative, I have been serving as a government member of the 

newly fanned FOIA Federal Advisory Committee. The FOIA Advisory Committee has met four 

times (June 24,2014, October 21,2014, January 27,2015, and April2l, 2015) and discussed a 

range of issues related to FOIA administration, including assessment of fees under the statute 

and proactive disclosures. 

Finally, the 11tlh initiative is one that OlP is very proud to have successfully completed. 

The commitment was to enhance FOIA training by making standard e-Lcaming resources 

available for all federal employees. As I mentioned at the start, I believe that it is vitally 

important that all agency personnel, and not just FOIA professionals, have the proper training to 

understand the important role they play in implementing the FOIA. Just in time for Sunshine 

Week, after a year of preparation, my Office released a suite of new e-learning FOIA training 

6 
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resources. These resources target the entire spectrum of federal employees, from the newly 

arrived intern to the senior executive, to ensure that all employees know their obligations and 

responsibilities under the law. 

The new training resources include: 

• An infographic that serves as a resource on FOIA basics for all employees new 

to the federal workforce; 

• A brief video designed specifically for senior government executives, which 

provides a general overview of the FOIA and emphasizes the importance of 

their support to their agency's FOIA program; 

• An in-depth e-Learning training module specifically designed for FOIA 

professionals, which addresses all the major procedural and substantive 

requirements of the law, as well as the importance of good customer service; 

and 

• A separate e-Leaming training module for all other federal employees that 

provides a primer on the FOIA and highlights ways in which they can assist 

their agency in administering the law. 

This new suite of FOIA training tools not only provides important resources for all 

agencies, but it reemphasizes the important message from fonner Attorney General Holder's 

2009 FOIA Guidelines that "FOIA is everyone's responsibility." 

In closing, I want to thank you for the opportunity to be here today to discuss agencies' 

administration of the FOIA and all of our efforts here at the Department to encourage 

compliance with this important law. The Department of Justice looks forward to working 

together with the Committee on matters petiaining to the government-wide administration of the 

FOIA. We are fully committed to achieving the President's and Attorney General's vision of 

open govemmcnt. While this past fiscal year presented many challenges for agencies, we have 

accomplished a great deal since the issuance of the President's and Attorney General's 2009 

FO!A directives. Our work is not done, however, and OIP looks forward to continuing to work 

diligently to help agencies achieve even greater transparency in the years ahead. I would be 

pleased to address any question that you or any other Member of the Committee might have on 

this important subject. 

7 
29 

Chairman CHAFFETZ. Thank you. 

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

STATEMENT OF KAREN NEUMAN 

Ms. NEUMAN. Good morning, Chairman Chaffetz, Ranking Member Cummings, and members of the committee. My name is Karen 

Neuman, and I’m the Chief Privacy Officer and Chief FOIA Officer 

at the Department of Homeland Security. I’m very pleased to be 

here before you today to discuss how DHS implements the Freedom 

of Information Act. 

DHS is composed of several distinct components, each with 

unique authorities and categories of records. Our components operate their own FOIA offices, staffed by FOIA professionals who respond directly to requesters seeking records. 

My office has dual responsibilities to protect privacy and promote 

transparency. Every FOIA request deserves careful consideration to 

promote transparency while protecting the privacy of individuals 

and operationally sensitive information. 

We have some significant challenges, and we also have done 

some good things. As you know, DHS gets the largest number of 

FOIA requests of any Federal agency and produces the largest 

number of responses. In fact, DHS received 40 percent of all FOIA 

requests submitted to the government in fiscal year 2014. In this 

12-month period alone, we received an unprecedented 291,242 requests. As a result, we also have the largest backlog. 

Since January 2009, DHS experienced a 182-percent increase in 

its number of FOIA requests. At the same time, our FOIA professionals have significantly increased their output to meet this increased demand. In fiscal year 2014, these professionals processed 

238,031 requests. 

The Department of Homeland Security takes our obligation to 

promote transparency and further the values of open government 

embodied in the statute very seriously. Nonetheless, we face serious challenges to connecting requesters with the records they seek. 

I’d like to briefly highlight some of the measures we have implemented to reduce these challenges, including to reduce our backlog. 

The Government Accountability Office was asked by Congress to 

review DHS’ processing of FOIA requests. In November 2014, GAO 

published its report with four recommendations. We concurred with 

all four recommendations and are taking steps to address each one. 

For example, as recommended by GAO, we are in the process of 

finalizing our FOIA regulation, including preparing to publish a 

Federal Register notice seeking comment. As also recommended, 

we sought assistance from DOJ OIP in developing and implementing a policy to ensure that all DHS components are capturing 

FOIA costs consistently. 

Quite apart from these recommendations, I’ve initiated several 

new measures that are designed to improve DHS FOIA operations 

in both the near term and the long term. 

First, in January this year, I requested a top-to-bottom, independent review of six DHS component FOIA offices. That review is 

currently underway and is being conducted by the Office of Government Information Services, also known as OGIS. 


AKING-6430 with DISTILLER
30 

Second, my office is establishing a short-term blanket purchase 

agreement for FOIA support services. This contract will be utilized 

as needed by our component FOIA offices that require additional 

help. My goal here is really to empower the components to take 

quick action to manage backlog surges before they get out of control. 

Third, my FOIA leadership team has met with colleagues at 

other agencies to learn about the types of records that can be made 

available through technology and other routine procedures that are 

currently sought through a FOIA request. 

Fourth, my office continues to look for greater efficiencies from 

the use of technology. We offer each component FOIA office the 

ability to use a centralized FOIA tracking, processing, and reporting case management system with customizable features. We’re 

also working with the DHS Chief Information Officer to develop an 

e-FOIA mobile application that will enable the public to submit 

FOIA requests and check the status of these requests from a 

smartphone or mobile device. 

As a result of these measures, we are starting to see a slow but 

steady reduction in our backlog. Yesterday I learned that, as of 

May 2015, the DHS backlog was reduced by 10 percent, from 

103,480 to 92,066, since the beginning of the fiscal year. 

Despite the challenges we face, I am pleased that the administrative and technological infrastructure we have put in place is resulting in a trend in the right direction. We are working hard every 

day to provide access under the statute, and there is room for considerable improvement. I look forward to working with you to improve FOIA at DHS, and I welcome your recommendations and 

look forward to taking your questions. 

Thank you. 

[Prepared statement of Ms. Neuman follows:] 


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AKING-6430 with DISTILLERInsert offset folio 18 here 22472.018

Testimony of Karen L. Neuman, Chief Privacy Officer and ChiefFOIA Officer, 

Department of Homeland Security, Before the United States House of 

Representatives Committee on Oversight and Government Reform on "Ensuring 

Agency Compliance with the Freedom of Information Act (FOIA) Part II" 

June 3. 2015 

2154 Rayburn House Office Building 

Good morning Chairman Chaffetz, Ranking Member Cummings, and distinguished 

Members of the Committee. My name is Karen Neuman. I am the Chief Privacy Officer 

and ChiefFOIA Officer at the Department of Homeland Security (DHS). 1 My office 

administers policies, programs, and procedures to ensure that the Department complies 

with FOIA2

, the Privacy Act', and applicable sections of the E-Governmcnt 4 and 

Homeland Security Act 5

, as amended. 

Introduction 

I appreciate this opportunity to appear before you today to discuss how DHS implements 

FOIA. I will also describe what we are doing to improve access under the statute. 

The DHS FOIA Enterprise 

DHS is composed of several distinct Components, each with unique authorities and 

categories of records. Therefore, the Department's FOIA program takes a decentralized 

approach to meeting its obligations. DHS Components operate their own FOIA offices 

staffed by FOIA professionals who respond directly to requesters seeking records. 

On August 29, 2011, the Secretary of Homeland Security delegated to the Chief Privacy 

Officer the authority to develop and oversee the implementation of policies within the 

Department and except as otherwise provided by law, carry out the functions of the 

agency regarding compliance with FIOA. The DHS Privacy Office coordinates among 

and oversees DHS Component FOIA operations. The Privacy Office, through its FOlA 

unit, also processes FOIA requests for most of the Department's headquarters officcs. 6 

I 5 U.S.C. § 552. 

' 5 U.S.C. * 552. 

' 5 U.S.C. * 552a. 4 Pub. L. 107-347. * 208,44 U.S.C. *101 note. 5 6 u.s.c. * 142. 

'' The DHS FOIA Office processes the Privacy Office's initial requests and those for the following 11 offices: 

Office of the Secretary, Citizenship and Immigration Services Ombudsman. Domestic Nuclear Detection Office, 
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DHS takes its missions to be open and responsive very seriously. Nonetheless, as I 

discuss below, there are serious systemic challenges to connecting requesters with the 

records they seek. I have made addressing these challenges a top priority and would like 

to highlight some of the initiatives I have put in place to improve FOIA at DHS. 

Increased Demand for DHS Records 

DHS receives the largest number of FOIA requests of any Federal Department or Agency 

and produces the greatest number of responses. Since January 2009, DHS experienced a 

182 percent increase in the number ofFOIA requests received. As reported in our 

Annual FOIA report to the Attorney General, DHS received 40 percent of all FOIA 

requests submitted to the Federal Government in fiscal year 2014. 7 In that twelve-month 

period, DHS received an unprecedented 291,242 requests. As a result, DHS also has the 

largest backlog. In fiscal year 2014, the backlog increased from 51,575 to l 03,480. 

Components that process requests seeking immigration-related records have the largest 

backlogs in the Department, comprising more than 90 percent of the total DHS backlog. 

U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border 

Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE) received most 

of these requests. These Components primarily handle requests seeking immigration 

records (e.g., copies of the Alien File, entry/exit records, detention, and deportation 

records). 

Key Considerations in Responding to Requests 

The DHS Privacy Office has dual responsibilities to protect privacy and promote 

transparency. Every FOIA request deserves careful consideration in order to properly 

protect records that should not be released to the public. These records can include the 

personal infonnation of individuals we may have collected while carrying out the 

Department's missions, as well as information about law enforcement matters. Law 

enforcement records may include information about subjects of investigations, victims of 

crime, and the public at large. 

Providing Access to DHS Recm·ds under FOIA 

The Government Accountability Office (GAO) was asked by Congress to review DHS's 

processing of FOIA requests. In November 2014, GAO published the repoti Freedom of 

Office of the Executive Secretary. Office of lntergovcmmental Affairs, Management Directorate, Office of Policy, 

Office of the General Counsel. Ontce of Health Affairs. Office of Legislative Affairs, and Office of Public A Hairs. 7 http:i!www.dhs. gov/sitesidefault 1tiles 'publications/dhs~chief~f(Jin~ofticer~reports-fv-10 14 O.pdf 

2 
33 


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Information Act, DHS Should Take Steps to Improve Cost Reporting and Eliminate 

Duplicate Processinl with the following four recommendations: 

l. Finalize and issue an updated DHS FOIA regulation. 

2. Improve reporting ofFOIA costs by including salaries, employee benefits, 

non-personnel direct costs, indirect costs, and costs for other offices. 

3. Determine the viability of re-establishing the service-level agreement 

between USCIS and ICE to eliminate duplication in the processing of 

immigration files. If the benefits of doing so would exceed the costs, reestablish the agreement. 

4. Direct USCIS and Coast Guard to fully implement the recommended FOIA 

processing system capabilities and the Section 508 requirement. 

DHS concurred with all four of GAO's recommendations and has taken the following 

actions to address them: 

I. The Department has made significant progress on its draft FOIA notice of 

proposed rulemaking. We expect to publish the notice of proposed rulemaking in 

the Federal Register by the end of this fiscal year. We plan to finalize the rule 

following receipt and consideration of public comment. 

2. DHS sought assistance from the DOJ Office oflnfonnation Policy in the 

development and implementation of a policy to ensure that all DHS Components 

are capturing FOIA costs consistently. As a result of these discussions, my office 

developed a DHS Freedom oflnformation Act Office Budget Detail Worksheet. 

DHS Components will begin to usc the Budget Detail Worksheet and provide 

standardized budget information in June 2015. 

3. The Privacy Office established a working group to determine the feasibility of reestablishing a service-level agreement between USCIS and ICE and to determine a 

course of action that will eliminate duplication in the processing of requests for 

immigration files. While this issue is being studied, ICE has entered into a 

contract agreement to clear its current backlog of 56,129 requests that were 

refened from USCIS. As a result of this effort, since the beginning of the fiscal 

year the ICE FOIA backlog has decreased 30 percent from 56.129 to 39, !49 as of 

May 8, 2015. The overall goal of this one-year contract project is to eliminate the 

ICE FOIA backlog by 100 percent by the end of fiscal year 2015. 

~ http:/ lwww. trao.gov/assets10 70/067052.pdC 

3 
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4. On March 16,2015, the DHS Privacy Office issued a policy memorandum laying 

out requirements for all DHS FOIA Offices to have a processing system with the 

recommended capabilities to meet the 508 requirements. 9 

In addition to implementing the GAO recommendations, we have initiated numerous new 

and innovative measures that are designed to improve FIOA operations in both the near 

and long term: 

• I requested top-to-bottom review of six DHS Component FOIA Offices: CBP; the 

Federal Emergency Management Agency (FEMA); ICE; the Transportation 

Security Administration (TSA); the U.S. Coast Guard (USCG); and the U.S. 

Secret Service (USSS). That review is currently being conducted by the Office of 

Government Information Services (OGIS) at the National Archives and Records 

Administration and will conclude with a report to me by September 2015. I 

expect that as a result of this review, OGIS will recommend best practices for 

additional Department-wide improvements to FOIA administration. 

• The Privacy Office is establishing a blanket purchase agreement contract for FOIA 

support services. This contract vehicle will be managed by the Privacy Office and 

funded as needed by the Component FOIA Offices that require additional help. 

• At my direction, the Deputy ChiefFOIA Officer recently met with colleagues 

from various agencies FO!A operations, to learn about the types of records that 

can be made available through technology and other routine procedures and that 

would not require the submission of a FO lA request. 

• The DHS Privacy Office continues to provide to each Component FOIA Office an 

enterprise-wide FOIA tracking, processing, and reporting case management 

system with customizable features. 

• The DHS Privacy Office is also working with the DHS Office of the Chief 

Information Officer (CIO) to develop an cFOIA Mobile Application. This 

Application will replicate the functionality of the DHS public-facing FOIA 

website for mobile use, including enabling members of the public to submit FOIA 

requests and check the status of existing requests from a mobile device. 

As a result of these measures we are starting to see a slow but steady reduction in the 

backlog. Since the beginning of the fiscal year, the DHS backlog has been reduced by 

seven percent from l 03,480 to 95,819 as of April 2015. 

9 http://www .dhs. uov/ si tcs/ dcf:1ul t! fi leslpub l icat ions/ dhs~imp lementation-o f-tec hnology-to-address-foiaprocessing. pdf. 

4 
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Conclusion 

Reducing the FOIA backlog has been a top priority since I joined DHS a little over a year 

and a half ago. Despite the challenges outlined above, I am proud of the administrative 

and technological infrastructure I have put in place to improve FOIA. This infrastructure 

is already resulting in a trend in the right direction for reducing the backlog. 

Nonetheless, there is room for improvement. 

As the Attorney General's 2009 FOIA guidance counseled, "the responsibility for 

effective FOIA administration belongs to all of us." A strong, collaborative relationship 

with Congress is crucial to the overall success of the Department's FOIA program. I look 

forward to working with the Committee to further understand and improve our FOIA 

processes. I welcome your recommendations and look forward to taking your questions. 

5 
36 

Chairman CHAFFETZ. Thank you. 

Mr. Fontenot. 

STATEMENT OF BRODI FONTENOT 

Mr. FONTENOT. Chairman Chaffetz, Ranking Member Cummings, 

distinguished members of this committee, thank you for the opportunity to testify today on Treasury’s role in fostering transparency 

through FOIA. 

My name is Brodi Fontenot, and I’m the Assistant Secretary for 

Management at the Department of Treasury and the designated 

department’s Chief FOIA Officer. As such, I take compliance with 

FOIA seriously. Although the nine Treasury bureaus independently 

process FOIA requests directed to each bureau, my team is responsible for providing agency-wide guidance and training as well as 

monitoring Treasury FOIA performance and proposing agency-wide 

policy and improvements. 

When I joined Treasury 6 months ago, I was pleased to discover 

that the Treasury team had already begun implementing new 

measures to improve FOIA performance and efficiency Treasurywide. For example, at our departmental offices, beginning in 2013, 

my team doubled the number of full-time employees dedicated to 

FOIA. 

We used additional capacity in two critical ways. First, we devoted focused attention on closing Treasury’s oldest FOIA cases. 

Second, we made significant changes to procedures and staffing 

used to manage FOIA cases to improve efficiency and timeliness. 

We have more work to do, but these initial measures are already 

producing results. For example, in fiscal year 2014, the Treasurywide FOIA backlog has decreased by 8 percent. We closed 13 of our 

oldest 20 cases agency-wide. We also processed more FOIA cases— 

FOIA requests in less time. Treasury closed 73 percent of incoming 

cases—requests within 20 days. That’s a 3-percent increase over 

2013. Five of nine Treasury bureaus closed more requests than 

they received during the fiscal year. Four Treasury bureaus ended 

the year with a zero backlog. And we also released more information overall. Treasury released records in full or in part in response 

to 90 percent of cases in which responsive records were identified. 

In sum, today, Treasury is releasing more information, processing more requests in less time, and making tangible progress on 

reducing its pending FOIA inventory and closing its oldest cases 

compared to just 18 months ago. 

But we also remain committed to making further strides. My 

team and I will continue to lean forward to drive improvements 

and to provide as much information as we can, as quickly as we 

can, both within the spirit and the letter of FOIA. 

I welcome your questions today. Thank you. 

[prepared statement of Mr. Fontenot follows:] 


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Testimony of Assistant Secretary for Management Brodi Fontenot 

House Oversight and Government Reform Committee 

Ensuring Transparency through the Freedom of Information Act 

Wednesday, June 3, 2015 

Chairman Chaffetz, Ranking Member Cummings, and distinguished members of the Committee, 

thank you for the opportunity to testify today on the Department of Treasury's role in fostering 

transparency through the Freedom of Information Act (FOIA). 

As the Treasury Department's ChiefFO lA Officer. I take seriously compliance with FOIA and 

promotion of transparency and openness in Treasury operations. Although the nine Treasury 

bureaus independently process FOIA requests directed to each bureau, my team is responsible 

for providing agency-wide guidance and training, as well as for monitoring Treasury FO!A 

performance, and proposing agency-wide policy and improvements. 

Like many other agencies, Treasury faces challenges in the administration of FOIA. But 

Treasury remains steadfast in its commitment to improving its FOIA performance, and has made 

notable progress. Treasury-wide, the agency received an average of 15,657 requests annually 

between 2009 and 2014. In FY 2014, Treasury processed nearly 14,000 requests agency-wide. 

The scope and complexity of these requests and the resources required to respond vary greatly. 

As of April 30. approximately 930 requests remain pending, which is less than six percent of our 

average annual incoming requests. 

When I joined Treasury six months ago, I was pleased to discover that the Treasury team had 

already begun implementing new measures to improve FOIA performance and efficiency in 

Departmental Offices and Treasury-wide. For example, at Departmental Offices, beginning in 

2013, my team doubled the number of full time employees dedicated to FOIA. We used that 

additional capacity in two critical ways. First, we devoted focused attention to closing 

Treasury's oldest FOIA cases. In FY 2014, Treasury closed 13 of its 20 Oldest FOIA cases. So 

far in FY 2015, we have closed two out of our top twenty oldest. including the oldest FOIA 

request in the agency. 

Second, we made significant changes to the procedures and staffing structure used to manage 

FOIA cases to improve efficiency and time lines. These procedures now require that a case 

manager be assigned as the point of contact for each request. As a result, requests arc tracked 

more e!Tectively. In addition, FOIA requesters can talk to the case manager assigned to their 

case to obtain information on the status of their case. 

We have improved service to FOIA requesters and the general public through better use of 

technology as well. In 2013, we implemented a new online Treasury FOIA portal. Requesters 

can now submit requests for any Treasury bureau or Office online through Treasury.gov. We 

also continue to proactively post a wide variety of Treasury materials on our FOIA page on 

Treasury.gov. 
38 


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In addition, my team, in its Treasury-wide policy and oversight capacity, is driving improved 

FOIA performance for Treasury's bureaus. My team monitors each bureau's key FOIA mctrics, 

and I review FOIA performance data with bureau leadership regularly. 

My team also engages directly with FOIA staff from each bureau. They hold monthly FOIA 

Council meetings-attended by staff of all nine Treasury bureaus-to discuss the latest 

guidance, best practices, and common challenges in FOIA implementation. They also promote 

and provide FOIA training for all bureau FOIA professionals. During the past year, 100 percent 

of the full-time FOIA professionals across Treasury received FOIA-specific training. 

We have more work to do; but there are encouraging signs that Treasury is on the right track. 

For example, during FY 2014: 

o The Treasury-wide FOIA backlog decreased by eight percent. 

o Treasury received 14, I 07 requests and closed 13,991 requests- we are keeping pace 

with the volume of requests. 

o We also processed more FOIA requests in less time. Treasury closed 73 percent of 

incoming requests within 20 days-that is a three percent increase over FY 2013. 

o Five of the nine Treasury bureaus closed more requests than they received during the 

±!seal year. 1 Four Treasury bureaus ended the year with zero backlog 2 

o We also released more information overall. Treasury released records in full or in 

part in response to 90 percent of cases in which responsive records were identified. 

Treasury was one of only nine federal agencies with such a high rate of released 

rccords. 3 

In sum, today Treasury is releasing more information, processing more requests in less time, and 

making tangible progress on reducing its pending FOIA inventory and closing its oldest cases, as 

compared to just 18 months ago. We believe we are headed in the right direction. 

Applying FOIA properly remains a complex endeavor. It requires trained, experienced 

professionals who arc expert in applying the law and knowledgeable about agency activities and 

records. Maintaining the right level of resources is especially challenging in light of the budget 

environment and the limited number of skilled FOIA professionals. 

Nevertheless, Treasury has increased its investment in FOIA, even while its appropriations 

shrink. Treasury spent over 20 million dollars in FY 2014 on compliance with FOIA-a 28 

1 Treasury Departmental Offices, the Bureau of the Fiscal Service, Treasury Inspector General for Tax 

Administration (TIGTA), the U.S. Mint, and the Alcohol and Tobacco Tax and Trade Bureau (lTB) all closed more 

requests than they received in FY 2014. 2 Financial Crimes Enforcement Network, U.S. Mint, TTB and TIGTA all reported zero FOIA backlog at FY 2014 

~ear end. 

· According to the Depattment of Justice Annual FOIA Report Summary, ·'DOT, USDA, Department of Energy 

(DOE), DHS, Treasury, Department of the Interior (Interior), DOJ, DOD, and Department of Housing and Urban 

Development (!·IUD)-- released records in full or in part in response to 90% or more of the requests that they 

processed for exemption applicability." 

http:/ /www.justice.gov!sites!defau lt!files/oip/pages/attachments/20 15/05/0 I /fy _20 14 _annual _report_ summary.pdf. 

2 
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percent increase over the prior two years. Similarly, Treasury added 32 fi.1ll-time equivalents to 

its agency-wide FOIA staff between 2012 and 2014-an increase of21 percent. The current 

fiscal environment makes the availability of additional resources uncertain. 

We remain committed to further improvements with existing resources. We believe the 

measures already implemented, as described above, will continue to improve Treasury-wide 

FOIA performance. My team and I will continue to Jean forward to drive additional 

improvements and to provide as much information as we can, as quickly as we can, within both 

the spirit and letter of FOIA. 

I w·elcome your questions today. 

Thank you. 

3 
40 

Chairman CHAFFETZ. Thank you. 

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

STATEMENT OF MARY HOWARD 

Ms. HOWARD. Thank you. 

Chairman Chaffetz, Ranking Member Cummings, and members 

of the committee, thank you for having me here today. I’m Mary 

Howard, and I’m the Director of IRS’ privacy, governmental liaison, 

and disclosure operations. I’m here today to testify on the IRS’ policies and procedures regarding complying with requests for information under the Freedom of Information Act. 

Each year, the IRS processes thousands of FOIA requests, most 

of which require labor-intensive searches of both paper and electronic records. Despite this volume and complexity, the IRS closes 

more than 80 percent of its FOIA cases in 30 business days or less. 

In fact, our average cycle time generally hovers right around 21 

days. 

The IRS follows a standard procedure for handling each FOIA request it receives. This involves analyzing the request to determine 

whether it can be processed under FOIA, determining the scope of 

the request and searching for responsive records, reviewing material to decide what should be released or withheld, and sending a 

response to the requester. 

Over the last several years, our FOIA operation has faced a number of challenges. For example, the size of an average FOIA request 

and the volume of potentially responsive documents have mushroomed as more and more requests require searching email and 

other electronic documents. Broad requests can easily result in the 

IRS needing to collect and redact thousands of documents in response to a single requester. 

Another challenge involves personnel. We have managed to protect the overall staffing of the FOIA process in IRS, experiencing 

only a slight decline over the last few fiscal years despite financial 

constraints and related hiring freezes, but a high turnover rate has 

created some difficulties. Replacing our FOIA specialists involves 

not only hiring new workers but also training them to bring them 

up to the expert level required to handle complex FOIA requests. 

The cuts to our budget have had a negative impact on the timing 

of replacement hiring and the delivery of the training. 

The net result has been a gradual loss of expertise in the FOIA 

area at IRS over the past several years. The problem is expected 

to get worse. We estimate that more than 60 percent of our FOIA 

professionals will be eligible to retire over the next 5 years. 

Another critical aspect of the IRS’ ability to adequately respond 

to FOIA requests involves the management of official records. 

Here, too, the IRS faces significant challenges. This is largely because we don’t have systems that let us easily search and retrieve 

electronic records and emails unless they’re part of the taxpayers’ 

case records. We are also unable to categorize, label, and centrally 

store electronic records, including email. And I hope you’ll ask me 

some questions so I can give you some more insight into that. 

Without this capability, we must conduct an account-by-account 

search for documents to comply with a FOIA request. This is an 

extremely tedious and time-consuming process, and that’s before 


AKING-6430 with DISTILLER
41 

we get to the actual review for the exemptions. Additional funding 

would allow us to upgrade our infrastructure platforms and acquire 

more effective search capabilities. We could then respond to large 

document requests far more quickly than we’re able to now. 

So let me turn now to the events of 2013. Beginning that summer, the IRS was faced with an unprecedented number of FOIA requests related to the processing of applications for the 501(c)(4) status. In all, there were 154 requests, and that might not sound like 

a lot, but they were very voluminous and complex in nature. At the 

same time, four congressional committees, the Treasury inspector 

general, and the Department of Justice were all requesting large 

amounts of documents from IRS on the same issues. 

The IRS created a special team to review and produce documents 

responsive to the six official investigations. This team redacted the 

documents required by 6103 of the Internal Revenue Code to ensure that Federal tax information was protected appropriately. Because of its experience on conducting reviews and producing documents for litigation, the IRS Office of Chief Counsel performed the 

6103 reviews and the document production. That was required for 

all the requested documents except those going to the tax-writing 

committees. 

While Counsel was conducting this effort, disclosure staff was addressing and responding to their regular FOIA casework that flows 

in at a rate of 10- to 12,000 cases per year. The IRS determined 

that responding to the investigations would take precedence over 

responding to the requests for information under FOIA. And the 

IRS has produced to Congress more than 1 million pages of documents for those investigations. 

Given that all FOIA documents need that 6103 review, we waited until we had fulfilled the request of the investigators until we 

went forward. Of the 154 cases I mentioned, FOIA cases, 34 remain 

pending with the disclosure office. 

We regret that the process has taken this long, but, given the extraordinary circumstances, we really felt there was no other way 

that we could respond appropriately to Congress and the investigators. The IRS remains committed to FOIA as we work through 

these challenges. 

So this concludes my statement, and I look forward to responding 

to your questions. 

[Prepared statement of Ms. Howard follows:] 


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WRITTEN TESTIMONY OF 

MARY HOWARD 

DIRECTOR, PRIVACY, GOVERNMENTAL LIAISON AND DISCLOSURE 

DIVISION 

INTERNAL REVENUE SERVICE 

BEFORE THE 

HOUSE OVERSIGHT AND GOVERNMENT REFORM COMMITTEE 

ON THE FREEDOM OF INFORMATION ACT 

JUNE 3, 2015 

INTRODUCTION AND BACKGROUND 

Chairman Chaffetz, Ranking Member Cummings and Members of the 

Committee, my testimony today will discuss IRS policies and procedures 

regarding requests for information under the Freedom of Information Act (FOIA). 

FOIA, which went into effect in 1967, established an effective statutory right 

under which records of the Executive Branch of the federal government are 

accessible to the public. FOIA applies to records either created or obtained by an 

agency and under agency control at the time of the FOIA request. Importantly, 

the statute sets standards for determining which records must be made available 

for public inspection and which records (or portions of records) must or may be 

withheld from disclosure, and it also provides administrative and judicial 

remedies for those who are denied access to records. 

The IRS is committed to full compliance with FOIA. The FOIA reflects 

fundamental values held by our society, including public accountability, while at 

the same time recognizing other important interests, such as safeguarding 

national security, enhancing the effectiveness of law enforcement agencies and 

the decision-making processes, and protecting sensitive business information. 

The IRS follows a standard procedure for handling each FOIA request it 

receives, which involves; analyzing the request to determine whether it in fact 

requests agency records and otherwise falls within the scope of FOIA; 

determining the scope of the request and conducting a search for responsive 

records; reviewing the material collected to determine what should be released or 

withheld; and preparing and sending a response to the requester. 

In managing its FOIA operations, the IRS follows best practices, which include: 

• Contacting requesters when necessary to clarify their needs and ensure 

that the scope of what they are seeking will result in a relevant document 

set that meets their expectations; 
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• Providing information to taxpayer requesters through non-FOIA processes 

that can be used to obtain the records they seek, which may be more 

efficient for the taxpayer; 

• Identifying the FOIA work that needs special treatment because of 

complexity; 

• Making sure that resources and processes are in place so that our FOIA 

professionals can get specialized legal or technical support when needed; 

and 

• Providing for appropriate review to ensure that the agency is consistent 

and correct in handling FOIA requests. 

The records responsive to each FOIA request that the IRS receives must be 

reviewed to determine whether any or all of the information is protected by one or 

more of the nine exempt categories of information found in the statute. When 

information is exempt, however, in accordance with the President's and Attorney 

General's 2009 FOIA Memoranda, as well as IRS policy, IRS FO!A professionals 

examine that information to determine if there is a foreseeable harm in disclosure 

and if discretionary release is appropriate. IRS policy states that any 

discretionary decision to release information protected under FOIA should be 

made only after full and deliberate consideration of the institutional, commercial 

and privacy interests that could be affected by disclosure of information. 

An entire record is not necessarily exempt when a record contains some 

information that qualifies as exempt. Instead, FOIA specifically provides that any 

portions of a record that can reasonably be segregated must be provided to a 

requester after exempt portions are redacted or withheld. FOIA requires the IRS 

to identify the extent of, and basis for, any redactions from documents it releases, 

unless including that indication would harm an interest protected by an 

exemption. 

In its FOIA review process, the IRS must also be mindful of its unique obligation 

to comply with Internal Revenue Code Section 6103, a statutory exemption 

recognized by FOIA that authorizes disclosure of federal tax information only in 

specific instances. 

ONGOING CHALLENGES IN THE FOIA AREA 

Over the last several years, as increasing numbers of documents have been 

created in electronic form, and as email messages have been requested more 

frequently, the size of an average FOIA request and the volume of potentially 

responsive documents has mushroomed. A single request frequently can result 

in the IRS needing to collect and redact thousands of documents. In addition, the 

number of cases considered to be "complex" - containing issues or volumes of 

records too difficult to resolve within the statutory time frame- has increased as 

well. As of April 1, 2015, 31 percent of the cases in our FOIA inventory were 

deemed complex, compared with 17 percent in 2012. 

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While the size of requests and the percentage of complex FOIA cases have 

increased over the last several years, we have managed to maintain the number 

of employees able to process basic FOIA matters, even with our financial 

constraints and related hiring freeze. But a high turnover rate has meant fewer 

experienced FOIA personnel. Replacing FOIA specialists involves not only hiring 

new workers, but also investing in extensive training and oversight necessary to 

bring replacements up to the expert level required to properly process complex 

FOIA requests, which has been difficult given recent cuts to our budget. 

The net result has been the gradual loss of a significant amount of expertise in 

the FOIA area over the last several years. This challenge is expected to 

continue, as we estimate that more than 60 percent of our FOIA professionals 

will be eligible to retire in the next five years. 

Another critical aspect of the IRS' ability to adequately respond to FOIA requests 

involves the ability to efficiently identify and retrieve responsive records. Here 

too, the IRS has faced challenges in recent years, largely because we do not 

currently have systems that would allow us to easily search and retrieve 

electronic records and emails, unless they are part of taxpayer case records. 

Without an effective automated method for searching for electronic documents, 

including email, the IRS must conduct an account-by-account search for 

documents, which is an extremely time-consuming process. Additional funding 

would allow us to upgrade our infrastructure platforms and acquire more effective 

search capabilities, which would in turn allow us to respond to document 

requests, even extremely large ones, much more quickly than we are able to 

now. 

Yet another challenge in the FOIA area for the IRS involves the out-of-date 

software we currently use for the day-to-day management of FOIA operations. 

Upgrading this software would allow the IRS to more quickly process and track 

FOIA requests, and thus reduce the amount of time it takes to complete a case. 

Additional funding would allow us to acquire a state-of-the-art web-based 

program that is currently installed at over 150 U.S. government agencies and 

offices. 

ADDRESSING THE 2013 SURGE IN FOIA REQUESTS 

Each year, the IRS processes more than ten thousand FOIA requests, most of 

which require labor-intensive searches of paper and electronic files. Despite this 

volume and complexity, the IRS closes the vast majority of its FOIA cases- over 

80 percent- in 30 business days or less. For example, we received a total of 

approximately 10,400 FOIA requests in FY 2014, and the average time it took us 

to close a case that year was 20 days, with 83.2 percent of cases closed within 

30 days. 

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Beginning in the summer of 2013, the IRS was faced with an unprecedented 

number of FOIA requests- a total of 154- seeking records related to the 

processing of applications for tax exemption under Internal Revenue Code 

Section 501 (c)(4). This followed the release of a report in May 2013 by the 

Treasury Inspector General for Tax Administration (TIGTA). At the same time, six 

investigating entities- TIGTA, the Department of Justice (DOJ) and four 

Congressional committees- were making requests to the IRS for large amounts 

of documents also related to the processing of exemption applications. 

At the time, the IRS's highest priority was responding to the investigations by the 

four Congressional committees, TIGTA and DOJ. Further straining the IRS's 

limited resources in this area were document productions related to numerous 

ongoing civil litigation cases involving the same subject matters. 

The IRS has devoted substantial resources to complying with the Congressional 

requests for information, by transmitting documents and facilitating interviews in 

an effort to provide complete facts about the determination process for taxexempt status under section 501(c)(4). More than 250 IRS employees have 

spent more than 160,000 hours working directly on complying with the 

investigations, at a cost of approximately $20 million, which also includes the 

cost of adding capacity to our limited information technology systems to 

accommodate the voluminous information requests. 

To date, the IRS has produced to Congress more than 1 million pages of 

documents related to the investigations. The House Ways and Means Committee 

and Senate Finance Committee have received approximately 1.3 million 

unredacted pages of material, while the IRS has produced about 1.1 million 

redacted pages to the House Oversight and Government Reform Committee. 

The difference in the number of pages produced was largely due to the fact that 

individual case files, which can be voluminous, may be disclosed only to the taxwriting committees under section 6103. 

Ultimately, the decision to give priority to the investigations by TIGTA, DOJ and 

the four Congressional committees resulted in a significant increase in inventory 

of FOIA casework at the IRS: the number of backlogged cases that remained 

open at the end of FY 2014 stood at 317, compared with 217 at the end of FY 

2013, and i 18 at the end of FY 2012. To put these numbers in perspective, it 

should also be noted that during the FY 2012-2014 period, the total number of 

FOIA cases closed by the IRS exceeded 33,000. 

The IRS remained committed to the FOIA process even as it worked through the 

challenges posed by the complexity of the issues involved, the limitation on our 

resources, and the priority we placed on producing the documents requested by 

Congress and other investigators. 

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IMPROVING MANAGEMENT OF ELECTRONIC RECORDS 

The IRS has a long history of complying with the standards for retention of 

federal records set by the National Archives and Records Administration (NARA). 

Nonetheless, the unprecedented volume and scope of the document requests 

made by Congress and the public in 2013 in regard to the processing of 

applications for tax-exempt status highlighted the need for the IRS to continue 

improving its maintenance of federal records that are in electronic form, 

consistent with the constraints on our budget. 

The IRS has been working for the last several months to revamp its records 

retention practices, focusing particularly on electronic records. In this effort, we 

have been in close consultation with NARA to ensure the best approach. 

As a first step, in October 2014, we implemented an interim email retention policy 

for all senior IRS executives. This interim policy, which follows NARA's 

recommendations for email records retention, was extended to all IRS executives 

in December 2014. This policy is to be followed by a more fully developed 

enterprise solution for longer-term storage of emails. We are working to complete 

the development and implementation of the enterprise solution, though success 

will depend on funding, staffing, and prioritization against other business 

requirements. 

Our next step, to the extent that funding is available, will be to purchase the 

necessary equipment and technology to allow us to securely store, search, and 

retrieve emails that are federal records. 

While the interim policy is an important step toward a consistent policy of 

electronic federal records retention, the IRS ultimately intends to develop and 

implement more automated enterprise solutions, consistent with governmentwide guidance and standards. But we cannot wait for those solutions to be fully 

funded. That is why we have already begun to take action using the resources 

available to us. 

Chairman Chaffetz, Ranking Member Cummings and Members of the 

Committee, this concludes my statement, and I would be happy to take your 

questions. 

5 
47 

Chairman CHAFFETZ. Thank you. 

We will now recognize the gentleman from Michigan, Mr. 

Walberg, for 5 minutes. 

Mr. WALBERG. Thank you, Mr. Chairman. And thank you for the 

hearings of the past couple days. 

And as I have contemplated what we have heard from the three 

panels thus far on FOIA in the last 2 days, you know, I am just 

absolutely convinced that FOIA really isn’t the problem; it is just 

an evidence, an outcome of the problem. The increasing size of government and the control of government is the problem. 

I mean, it is an absolute fact that we have amongst the highest 

paid bureaucrats administering these programs and others in government anywhere in the world. We have the highest technology, 

at least amongst the highest technology, of anyplace in the world 

to administer our bureaucracy. We have the largest number of bureaucrats in the world to administer our bureaucracy. 

And with the size of government like this, why would we expect 

anything other than a huge, huge number of FOIA requests coming 

from an increasing number of American citizens who feel under attack from their own government? They are regulated, they are 

taxed, they are supervised, they are overseen almost more than 

any other free country in the world. 

So I look at our panel of witnesses, and I say, how in the world 

can you be expected to do your job in a way that satisfies not only 

Congress but the people of the United States? They are going to 

ask more because they don’t trust us. They are tired of being overrun. 

I will get to my questions. 

Also, with all due respect, if dollars, more dollars, were the answer, then the war on poverty, the war on hunger, the war on pollution, the war on crime, the war on many other things would be 

ended. By the way, Fast and Furious, Benghazi, IRS-gate would be 

taken care of. We would know the answers. Attorney General Holder—former Attorney General Holder wouldn’t have been held in 

contempt of Congress. Lois Lerner wouldn’t have been held in contempt. 

FOIA isn’t the main problem. Liberty demands transparency 

from a limited government to succeed. And we are not succeeding 

in addressing the concerns of our people. Government has grown, 

and, thus, it is increasingly mistrusted and it will be mistrusted 

from all sides of the aisle, politically speaking. 

And so, Mr. Chairman, I again thank you for these hearings. It 

just makes it clearer and clearer why we are in the battle with the 

budget to reduce government to the size that liberty can expand 

and not government. 

Ms. Neuman, DHS has the largest backlog of any Federal agency. How does the duplicative process of requests contribute to— 

processing of requests contribute to backlog? And I refer specifically to the relationship between USCIS and ICE. 

Ms. NEUMAN. Thank you. I appreciate that question. 

Let me just say that, with respect to the backlog, any significant 

delays in processing requests don’t meet my standards, and I expect to see improvement. That goes for duplication, as well. And, 

as you may be aware, the GAO studied that aspect of our FOIA opVerDate Sep 11 2014 14:05 Jan 04, 2017 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 F:\22472.TXT APRIL

AKING-6430 with DISTILLER
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erations and made some recommendations that we are implementing in a number of ways. 

USCIS and ICE receive a significant number of our FOIA requests, many of which are immigration-related. There may be instances where one or more of those components holds files—or 

holds records that are contained in the alien file. We do not—we 

do not support unnecessary duplication, and we have—— 

Mr. WALBERG. Will the two agencies be put back together under 

the arrangement that was in place before 2012, where they weren’t 

duplicating? 

Ms. NEUMAN. Well, that’s really not my decision to make. I also 

want to tell you—— 

Mr. WALBERG. Whose decision is it? 

Ms. NEUMAN. I—it’s up to the Members of Congress who write 

the statute. 

I will also tell you that we’ve implemented technology measures 

that—— 

Mr. WALBERG. But I don’t understand that that is our responsibility. It worked before 2012; at least they worked in that nonduplicative arrangement. Why can’t it be put back in there? Who 

is responsible? And it’s not Congress. 

Ms. NEUMAN. So my focus is really, as the Chief FOIA Officer, 

on connecting requesters with their records. And I have got to 

spend my time looking at, the way the agency is constructed now, 

what inefficiencies, if any, are preventing us from meeting our 

transparency mission—— 

Mr. WALBERG. So the answer is you’re not going to do anything 

to put the two component parts back together to stop duplication. 

Ms. NEUMAN. I am focussing on connecting requesters with their 

records. 

Mr. WALBERG. Mr. Chairman, my time has expired, and I didn’t 

get the answer. Or I guess I did. 

Chairman CHAFFETZ. I thank the gentleman. 

We’ll now recognize the gentleman from Massachusetts, Mr. 

Lynch, for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman and the ranking member, 

for your courtesy this morning and for holding this hearing. I want 

to thank the witnesses for your help in addressing this issue. 

Ms. Barr, there has been a lot of discussion up to now about Secretary Clinton and her use of personal email for official business. 

It’s my understanding from the documents that we have here that 

Secretary Rice, Condoleezza Rice, did not use a personal email account for official business. Is that right? 

Ms. BARR. Yes, that’s what I understand. She has told us that 

she did not conduct a lot of official business over email, but when 

she did she used a State Department account. 

Mr. LYNCH. Okay. How about Secretary of State Colin Powell? In 

his autobiography he admits that he used his personal email account for official business all the time. I have a great quote here. 

He says, and this is a quote from former Secretary of State Colin 

Powell: ‘‘To complement the official State Department computer in 

my office, I installed a laptop computer on a private line. My personal email account on the laptop allowed me direct access to anyone online. I started shooting emails to my principal assistants, to 


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individual ambassadors, and increasingly to my foreign minister 

colleagues who, like me, were trying to bring their ministries into 

the 186,000-mile-per-second world, the speed of light.’’ 

So do we have any emails from Secretary Powell? 

Ms. BARR. No, we do not have any emails from Secretary Powell. 

We did ask him if he had any official records. He noted when he 

came back to us that he started at what was then the beginning 

of the State Department’s email age, but he did not have any 

records to return to us. 

Mr. LYNCH. There was some critical decisions made. His speech 

before the U.N. About the existence of weapons of mass destruction, we don’t have any emails regarding that decision and how 

those statements were made? 

Ms. BARR. I have no personal knowledge about that, sir. 

Mr. LYNCH. Yeah. Okay. You know, this is troubling because it 

seems like in the case of Secretary Clinton the way people handled 

their emails, at least it’s been suggested, that really determined 

her fitness of whether or not she can be President. That’s basically 

the statement that’s being made today. 

And I’m puzzled because Secretary Rice did not perform in that 

manner, Secretary Colin Powell did not perform in that manner, 

and I’m just wondering if we have a uniform standard here. It 

doesn’t seem from the Federal Records Act that it requires people 

to not use personal email. 

Ms. BARR. When we are dealing with the Federal Records Act of 

course we have to work with employees to maintain records. But 

with regard to using nongovernment email services, if people do 

that we ask that they capture those records by copying their official 

account. 

We are working very hard looking forward to make sure that 

people understand what their requirements are. Under the Federal 

Records Act if, for example, they are out and their BlackBerry 

stops working, to make sure that they copy their accounts. But 

overall I would say that what is most important to us is that we 

have that collection now and we are processing it for—— 

Mr. LYNCH. Right. I appreciate that. Let me just say—I only 

have a little bit of time left here—it’s my understanding that 

former Secretary Clinton delivered about 55,000 pages in emails. 

Ms. BARR. That’s correct. 

Mr. LYNCH. Yeah. Have any of the other Secretaries of State, 

during your time, and you’ve been there a while, Secretary Rice, 

Secretary Colin Powell? 

Ms. BARR. No, only from Secretary Clinton. 

Mr. LYNCH. All right. That’s about my time. 

Mr. Chairman, I yield back. Thank you. 

Chairman CHAFFETZ. Thank you. 

I’ll now recognize myself for 5 minutes. 

Ms. Howard, the White House on April 15, 2009, sent a directive 

out from Gregory Craig, Counsel to the President. It says: ‘‘This is 

a reminder that executive agencies shall consult the White House 

Counsel’s Office on all document requests that may involve documents with White House equities.’’ He goes on and says: ‘‘This need 

to consult with the White House arises with respect to all types of 


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document requests, including congressional committee requests, 

GAO requests, judicial subpoenas, and FOIA requests.’’ 

So my question to you, Ms. Howard, when Congress sends you 

a request for information, what percentage of that do you share 

with the White House? 

Ms. HOWARD. To the extent that I’ve been involved in responses 

to Congress or responses to FOIA, we have never shared information with the White House. I became aware of this memo when we 

were asked for some information actually to demonstrate how 

many times we had this interaction. It was a FOIA request. I was 

curious as to why we were getting a FOIA request since we don’t 

have interaction with the White House on FOIAs, and I was presented with this memo. 

Chairman CHAFFETZ. So you’ve never sent anything to the White 

House? 

Ms. HOWARD. I can’t speak for the entire IRS. I mean, that would 

be a question for Chief Counsel or the Commissioner. I can simply 

speak for the Disclosure Office and the FOIA process. We do not 

interact with the White House. 

Chairman CHAFFETZ. So if you get a subpoena form the United 

States Congress, you get a subpoena from me, in the Oversight 

Committee, you don’t share that with the White House? 

Ms. HOWARD. The fact that it exists? Yeah, we may share the information that we got the subpoena, we may share the fact that 

we’re working on a subpoena, but the actual documents that were 

being produced for the subpoena? 

Chairman CHAFFETZ. Yeah. 

Ms. HOWARD. We would produce those documents and redact 

them for 6103. Again, that might involve Chief Counsel—— 

Chairman CHAFFETZ. What percentage of those do you share 

with the White House? 

Ms. HOWARD. What percentage do I share with the White 

House—— 

Chairman CHAFFETZ. Yeah. 

Ms. HOWARD. —would be zero. 

Chairman CHAFFETZ. Within the IRS, you do not share those, to 

the best of your knowledge, you don’t share—— 

Ms. HOWARD. To the best of my knowledge, the Disclosure Office 

does not consult the White House. 

Chairman CHAFFETZ. The White House told you you’re supposed 

to do it. The White House directed you to do that. You’re telling 

us that you didn’t comply with the White House request? 

Ms. HOWARD. Well, you know, I’m kind of towards the end of my 

career, so I’ll be real honest with you. I saw this memo. I was 

amazed to see the memo. It’s written to agency counsel, which is 

not me. I looked through the procedures that we have in our Internal Revenue Manual, which are basically how we run our operations with FOIA and I never saw this. I never saw any evidence 

that this is incorporated, and I ignored it. 

Chairman CHAFFETZ. When you respond to a letter from Congress or there’s a response to a subpoena from Congress, who sees 

that before we get it? 

Ms. HOWARD. In most instances, counsel would look at something 

like that, the chief of staff or the Commissioner. But again that’s 


AKING-6430 with DISTILLER
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really a question for the Commissioner in terms of what that process is like. 

Chairman CHAFFETZ. So Lois Lerner, Lois Lerner, requests for 

documents for Lois Lerner—— 

Ms. HOWARD. Uh-huh. 

Chairman CHAFFETZ. —who saw those documents? Who did you 

have to get clearance from before we get those documents? Because 

we still don’t have them all. 

Ms. HOWARD. The 6130 redactions, as I said in my testimony, 

were done by Chief Counsel, the Office of Chief Counsel. We may 

have redacted some of those documents for—well, you don’t get the 

FOIA—— 

Chairman CHAFFETZ. I’m asking what signatures do you need to 

see on there before you send it back to us? 

Ms. HOWARD. I’m not certain because I’m not the one doing the 

sending. That would be—— 

Chairman CHAFFETZ. But you’re the Director of this, and you’ve 

heard of Lois Lerner, I would hope, by now. 

Ms. HOWARD. I know Ms. Lois Lerner, yeah. 

Chairman CHAFFETZ. Yeah. So who do you have to check off with 

before we get those documents? 

Ms. HOWARD. Again, sir, with all due respect, that was not a 

process that I was personally involved in, nor was my disclosure 

operation. 

Chairman CHAFFETZ. If you had to guess that maybe we would 

ask about Lois Lerner. 

Ms. HOWARD. Which is why the Commissioner thought that perhaps he might be the best to answer your question. 

Chairman CHAFFETZ. But you’re the director. It’s your job and 

role and responsibility. 

Ms. HOWARD. No, sir. My job is the FOIA program. 

Chairman CHAFFETZ. Your title, correct, Director, Privacy, Governmental Liaison, and Disclosure. 

Ms. HOWARD. Right. 

Chairman CHAFFETZ. That’s your title. 

Ms. HOWARD. That is my title. 

Chairman CHAFFETZ. And you’re telling me you’re not responsible for the governmental liaison and disclosure part of that? 

Ms. HOWARD. Not in the context that you’re asking me. 

Chairman CHAFFETZ. Why? Because it’s Lois Lerner? 

Ms. HOWARD. No, I think because it was an unprecedented, voluminous—— 

Chairman CHAFFETZ. Wait. What was unprecedented about asking for information about Lois Lerner? What’s unprecedented about 

that? 

Ms. HOWARD. I think that Lois Lerner was the tip of the iceberg. 

Really? So do we. 

Ms. HOWARD. I think that that request included far more than 

just one person. 

Chairman CHAFFETZ. So what makes you think it’s the tip of the 

iceberg? 

Ms. HOWARD. In terms of the way the request was structured. 

Chairman CHAFFETZ. What was so striking about it? It’s pretty 

simply. I mean, in this electronic age, we’re asking for all of her 


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emails in a certain timeframe. How hard is that? I mean, that 

should take about 10 seconds, right? What’s so hard about producing those documents? Why has it taken so long? It’s taken 

years. 

Ms. HOWARD. And, again, I cannot talk to the specific documents 

about Lois Lerner, but what I can give you is some insight into 

how we—— 

Chairman CHAFFETZ. Okay. So when the request came, both in 

a letter and then in a subpoena, who does that go to? 

Ms. HOWARD. The Commissioner. 

Chairman CHAFFETZ. It doesn’t go to you? 

Ms. HOWARD. No. Not first. 

Chairman CHAFFETZ. But when we send these documents over, 

this doesn’t land on your desk? 

Ms. HOWARD. It does not land on my desk. 

Chairman CHAFFETZ. Does it land on any of your staff’s desks? 

Ms. HOWARD. No. It landed on the desk of the Commissioner and 

the Chief Counsel. 

Chairman CHAFFETZ. So they are solely responsible for the fulfillment of that request and for the subpoenas, correct? I mean, if it 

doesn’t go to you, you’re the Director of Privacy, Governmental Liaison, and Disclosure, and you’re telling me that your department, 

your group doesn’t get that because it came from Congress, right? 

Ms. HOWARD. No, no, because we made a business decision that 

because of the scope of that request we would set up a special 

project team, and that special project team—— 

Chairman CHAFFETZ. Who decided that? I want some names 

here. Mr. Koskinen? 

Ms. HOWARD. I think it was before his time, so I guess the Acting 

Commissioner. 

Chairman CHAFFETZ. Right. 

Ms. HOWARD. It was before my time too. So, you know, whatever 

I tell you is just hearsay. But it was my understanding that the 

Commissioner—— 

Chairman CHAFFETZ. We expect a little bit more. 

Ms. HOWARD. Again, it was not directed towards my division. 

Chairman CHAFFETZ. So it doesn’t come through your office, your 

department, your group, whatever you want to call it. 

Ms. HOWARD. We might be involved in it, but so are the IT people. 

Chairman CHAFFETZ. Was the Lois Lerner case dealt with differently than anything else? You said it was unprecedented. I want 

to know why. 

Ms. HOWARD. Well, I think because there were a lot of other 

501—504(c)(3)—(c)(4) documents that were requested at the same 

time. 

Chairman CHAFFETZ. So anything that had to deal with those 

documents, the (c)(4) documents—— 

Ms. HOWARD. Uh-huh. 

Chairman CHAFFETZ. —went a different direction than normally? 

Ms. HOWARD. It went into sort of a project team where we felt 

that we could handle—— 

Chairman CHAFFETZ. So there is a special project team that’s set 

up? 


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53 

Ms. HOWARD. There was at the time. I don’t believe it’s still functioning. 

Chairman CHAFFETZ. Why was there a special team set up? 

Ms. HOWARD. Because of the volume of the—— 

Chairman CHAFFETZ. It didn’t have anything to do with volume. 

It had to do with the topic, didn’t it? 

Ms. HOWARD. I don’t believe so, no. I think it was a business reason of how we would best use our resources. In actuality, looking 

back on it from my perspective, it was a very positive thing for the 

Disclosure Office because we could do all of our regular FOIA work, 

except for those particular topics. 

Chairman CHAFFETZ. So, I mean, what you’re telling me is, anything that came in on this topic, (c)(4), not just Lois Lerner, but 

(c)(4), went in a different route. It went to the Commissioner and 

it went to the General Counsel. There’s only two political appointees in all of the IRS, the Commissioner and the General Counsel. Those are the only two out of 90,000. And you’re telling me 

that those requests went a different route than normally anything 

else does, and it went to them, correct? That’s exactly what you 

told me. 

Ms. HOWARD. I don’t want to go on record as saying that I know 

specifically where requests went to. My understanding is that requests from Congress are given a certain level of respect and concern so that they go to the Commissioner’s office first and are parceled out as to who’s going to work them after that. 

Chairman CHAFFETZ. Do you know who the lead of that special 

project team was? 

Ms. HOWARD. I do not. 

Chairman CHAFFETZ. My time has expired. We’ll now recognize 

Mr. Cummings? 

Mr. CUMMINGS. Yeah. Thank you. 

Chairman CHAFFETZ. Mr. Cummings for 5 minutes. 

Mr. CUMMINGS. Thank you very much. 

Ms. Neuman, you have said that there was room for improvement. Can you tell us what those improvements might be that you 

were talking about? 

Ms. NEUMAN. Yes. 

Mr. CUMMINGS. I want to get to the bottom line and be effective 

and efficient. So tell me. 

Ms. NEUMAN. As do I, Congressman Cummings. 

One of the things I did when I first came aboard was to try to 

understand where some of the bottlenecks were in the Department 

in terms of the component backlogs and understand what the reasons for those backlogs might be. In doing so, I did identify some 

of the systemic challenges and decided that we really did need to 

address in the long term an independent comprehensive review of 

what these systemic challenges are, what the reasons for these 

backlogs are, and then get some best practices in place for dealing 

with those. 

In the interim, I decided that I could implement some more immediate measures to address some of these challenges. For example—— 

Mr. CUMMINGS. I want to know what still needs to be done to improve. I don’t have a lot of time. 


AKING-6430 with DISTILLER
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Ms. NEUMAN. Sure. I personally believe that we can leverage 

technology and deploy much more advanced technology throughout 

the Department that can be used to address the backlog. 

Mr. CUMMINGS. And what’s it going to take to make that happen? 

Ms. NEUMAN. Well, we’re in the process of doing that already. 

We are in the process. We’ve rolled out a successful pilot that’s intended to reduce the backlog and duplication. It’s been adopted by 

11 components thus far, and other components are in line to adopt 

it as well. 

Mr. CUMMINGS. How many components are there? 

Ms. NEUMAN. Well, there are 15 components that process FOIA 

requests. Eleven of these components have adopted this technology—— 

Mr. CUMMINGS. So you need four more, is that right? 

Ms. NEUMAN. Yes, sir. 

Mr. CUMMINGS. You have four to go. When do you expect that to 

happen? 

Ms. NEUMAN. I personally don’t—I’m not aware of the timeframe. 

I would be happy to confer with my staff and get back to you on 

that. 

Mr. CUMMINGS. Confer. I would appreciate it if you would confer—— 

Ms. NEUMAN. Absolutely. 

Mr. CUMMINGS. —and get back to me and let me know as when 

that’s going to happen. 

Ms. NEUMAN. I’d be happy to. 

Mr. CUMMINGS. I would also like for you to—because I don’t have 

a lot of time, I’m going to ask that you—you all—give us your recommendations. 

You know, as I listen here it seems like everything—you all 

make everything sound so rosy, and I want to try to get to the bottom line of what the problems are. We heard a lot of testimony yesterday. In all fairness to you, I think all of you all are probably 

doing a whole lot of good things. But at the same time, we have 

to balance that against what we have heard over the last day or 

so. 

Will you do that for me, Ms. Neuman? 

Ms. NEUMAN. Yes, I will. 

Mr. CUMMINGS. And other witnesses? 

Ms. NEUMAN. Yes, I will. 

Mr. CUMMINGS. Ms. Barr, I want to ask you some key questions 

because I want to follow up on what Mr. Lynch was talking about. 

And I want to thank you for being here. 

For the past several months there have been intense discussion 

about former Secretary of State Hillary Clinton and her use of personal email for official business. However, new documents—new 

documents—which we received late last night raise significant 

questions about the email usage of former Secretaries of State 

Condoleezza Rice and Colin Powell. The State Department sent a 

letter to these former Secretaries of State last fall requesting information about their use of personal email for official business. 

On December 5, 2014, Secretary Clinton and her attorneys responded by providing more than 30,000 emails totaling 55,000 


AKING-6430 with DISTILLER
55 

pages. The State Department now has those emails and is currently reviewing them to make them available to the public under 

FOIA. 

Is that correct, everything I just said? 

Ms. BARR. Yes, sir. 

Mr. CUMMINGS. All right. Neither Secretary Rice nor Secretary 

Powell provided any emails to the Department in response to that 

request. Is that correct? 

Ms. BARR. Yes, sir. 

Mr. CUMMINGS. Not one. We know that Secretary Powell used a 

personal email account for work because he wrote about this in his 

biography, and Mr. Lynch talked about that. But unlike Secretary 

Clinton, Secretary Powell did not preserve any of these emails. Is 

that correct, to your knowledge. 

Ms. BARR. Yes, he told us he did not have access to those anymore. 

Mr. CUMMINGS. So that means you didn’t have access to them? 

Ms. BARR. No. 

Mr. CUMMINGS. Last night, the committee received new documents regarding former Secretary of State Condoleezza Rice. In 

2007, the watchdog group Citizens for Responsibility and Ethics in 

Washington submitted a FOIA request seeking State Department 

policies governing the use of Secretary Rice’s email accounts. 

CREW also requested copies of emails from her official account as 

well as, ‘‘email messages that have been sent by the Secretary of 

State from any private mail account and that pertain to official 

government business.’’ 

We received the State Department’s response to this inquiry last 

night. It states that although the Department officials are still 

looking, ‘‘no responsive material was found.’’ 

So, Ms. Barr, are you aware of any emails that have been identified from Secretary Rice’s email account, any? 

Ms. BARR. No, I’m not aware. Well, I want to make sure that I 

understand your question. Are you asking me if I’m aware of any 

emails from her account that should be regarded as responsive material to this request? 

Mr. CUMMINGS. That’s right. 

Ms. BARR. Okay. No, I’m not aware of any that are responsive 

to this particular request. 

Mr. CUMMINGS. All right. And we already know you don’t have 

emails from Secretary Powell. Is that right? 

Ms. BARR. Yes, that is correct. 

Mr. CUMMINGS. So between the two of them, do you have emails? 

Ms. BARR. You mean personal? 

Mr. CUMMINGS. No, no, no, no, no, no. In response to your request. You sent the request. You all sent the request. Do you have 

any emails with regard to the request? 

Ms. BARR. No. 

Mr. CUMMINGS. So, Ms. Barr, as you stated today, can you tell 

us with certainty whether Secretary Rice even had an official State 

Department email account? 

Ms. BARR. Yes. It is my understanding that she had an official 

State Department request. 

Mr. CUMMINGS. Account. 


AKING-6430 with DISTILLER
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Ms. BARR. Account. 

Mr. CUMMINGS. Account. Okay. 

Ms. BARR. Sorry. But I would like to also say that emails are not 

the only way we capture records. We have cables, memos, agendas, 

we have lots of other ways that we capture official records. So 

while in these two instances we did not have emails to respond to 

requests, we have other types of records that we maintain that are 

looked at to see if we have responsive materials when people ask 

us through the FOIA process. 

Mr. CUMMINGS. Well, I appreciate that. Right now, though, I’m 

just talking about emails. 

Ms. BARR. Okay. 

Mr. CUMMINGS. You don’t have any emails from Secretary Powell? 

Ms. BARR. That are responsive to the request? 

Mr. CUMMINGS. Yes, ma’am. And you have none from Secretary 

Rice? 

Ms. BARR. That is true. That’s correct. 

Mr. CUMMINGS. It’s amazing. Secretary Powell and Secretary 

Rice served during critical times in this Nation’s history, during 9/ 

11 attacks, the war in Afghanistan, and the war in Iraq, yet as far 

as we can tell State Department officials don’t have their emails 

from this 8-year critical period. 

Ms. Barr, Secretary Powell has been straightforward about his 

failure to preserve his emails, but Secretary Rice has never spoken 

publicly about hers. In response to the State Department’s letter 

last fall, her representative responded by proclaiming: ‘‘Secretary 

Rice did not use a personal email account for official business.’’ 

Do you know if Secretary Rice’s attorney conducted a thorough 

review of her personal email account like Secretary Clinton’s did, 

do you know? 

Ms. BARR. I am not personally familiar with what her attorney 

did to respond to that request, sir. 

Mr. CUMMINGS. Well, my time has run out. But these new revelations are startling, so I hope that we will look at that era just like 

we’ve been looking at the present era with regard to these emails. 

All right. 

Chairman CHAFFETZ. I thank the gentleman. 

We’ll recognize the gentleman from North Carolina, Mr. Meadows, for 5 minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Ms. Pustay, let me come to you. Did you watch the testimony 

yesterday where we had 12 different witnesses across two panels 

talking about FOIA requests? 

Ms. PUSTAY. I didn’t. I didn’t watch it, but I was keeping up with 

it throughout the afternoon. 

Mr. MEADOWS. So you are aware of their less than flattering testimony as it relates to your particular involvement with FOIA requests, maybe not yours personally but the Justice Department. 

Are you aware of that, that it was less than flattering? 

Ms. PUSTAY. I don’t know if I’d agree with that. I respectfully 

don’t agree with that characterization. I understand, though, let me 

say this, I understand that requesters have examples of things that 

are frustrating experiences. 


AKING-6430 with DISTILLER
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Mr. MEADOWS. So what you’re saying is that the testimony that 

we heard yesterday was just a few examples of frustrating, because 

that’s not what I got from that, and I would characterize it as less 

than flattering. 

I’m having a hard time reconciling your opening testimony with 

the testimony of a number of witnesses yesterday with regards to 

the Department of Justice and your responsiveness, because your 

opening testimony provided very glowing terms. So I guess my 

question for you is, on scoring different agencies on how they respond, who gets the best marks and who gets the worst marks on 

your scoring? Because I understand you score. 

Ms. PUSTAY. Right. We do an assessment every year. 

Mr. MEADOWS. Just who gets the best ones—I’ve got 5 minutes— 

so who gets the best scores and who gets the worst scores? 

Ms. PUSTAY. Well, we have, if you look at the assessment, you’ll 

see we have a range of milestones, over 20-some milestones, so we 

rank and score agencies on a whole bunch of things. 

Mr. MEADOWS. So how does the Justice Department score on 

those milestones? 

Ms. PUSTAY. The Justice Department scores quite well on those 

milestones. 

Mr. MEADOWS. Okay. Would you suggest that if you’re setting 

the milestones and you’re scoring the milestones, that the testimony from all these other folks, who if they set milestones they 

wouldn’t give you high marks, how do you give yourself high 

marks? 

Ms. PUSTAY. I actually for the past 2 years, Congressman, have 

been working collaboratively with representatives from civil society 

to set the milestones. It’s actually been a joint effort. 

Mr. MEADOWS. Okay. So let me ask you this then. Ms. Attkisson 

gave us an example of requesting a FOIA request and it taking 10 

years. Her daughter was 8. She was 18 by the time the FOIA request. Would you say that that is a great response? 

Ms. PUSTAY. Right. No, of course not, of course not. 

Mr. MEADOWS. Okay. Would you say that that response is 

unique, that there are none others like that throughout all the 

FOIA requests? 

Ms. PUSTAY. No, of course not as well. 

Mr. MEADOWS. So what part of violating the FOIA law that is 

very clear—I mean, you know the FOIA law, I would assume, and 

it gives particular responses—what part of violating the FOIA law 

does the Department of Justice condone? 

Ms. PUSTAY. Right. I think that it’s important to look at areas 

that need improvement in FOIA. 

Mr. MEADOWS. Okay. So what part of the law does the Justice 

Department condone? 

Ms. PUSTAY. We don’t—we endorse—— 

Mr. MEADOWS. So you don’t condone violating the law? 

Ms. PUSTAY. Of course not. 

Mr. MEADOWS. Okay. 

Ms. PUSTAY. Of course not. 

Mr. MEADOWS. So I would think that would be your answer. 

Do you violate the law. 

Ms. PUSTAY. Of course not. We work hard—— 


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Mr. MEADOWS. So you’ve never violated the FOIA law? 

Ms. PUSTAY. We work hard, we work very hard at my office—— 

Mr. MEADOWS. I believe that. So the question is—— 

Ms. PUSTAY. —to promote transparency and promote compliance 

with the law. 

Mr. MEADOWS. I believe that. So the question, under sworn testimony today, is the Justice Department does not violate—has never 

violated the FOIA law. Is that your testimony? 

Ms. PUSTAY. I think what you’re asking me is, do we ever respond to requests beyond 20 working days? 

Mr. MEADOWS. Is that the law? 

Ms. PUSTAY. The law allows for extensions of time in unusual circumstances. 

Mr. MEADOWS. Okay. So with the extensions have you ever gone 

beyond the law? 

Ms. PUSTAY. So I wouldn’t characterize it as going beyond the 

law because the law actually recognizes, in many different aspects, 

the FOIA recognizes the reality, Congressman, of the need for 

agencies to take more time to respond to certain requests that are 

voluminous, for example. 

Mr. MEADOWS. All right. So let me ask it a different way. Is 

there anything in the law that would ever give you waivers to 

allow 10 years to respond to a FOIA request? Because I can’t find 

it. Can you show—— 

Ms. PUSTAY. Sure. 

Mr. MEADOWS. Direct me to where—— 

Ms. PUSTAY. Sure. 

Mr. MEADOWS. —it would be 10 years? 

Ms. PUSTAY. Sure. The way the timing provision is set out in the 

FOIA is it’s in section 6. There’s a basic response time of 20 working days. There’s a provision to ask for 10 additional days. 

Mr. MEADOWS. Right. 

Ms. PUSTAY. And then there’s a whole series of steps that agencies can take if they need beyond the additional 10 days. There’s 

a whole series of things that agencies can do. 

Mr. MEADOWS. So can you direct me to the actual paragraph—— 

Ms. PUSTAY. Absolutely. 

Mr. MEADOWS. —and send that to me where it says it’s okay for 

10 years? 

Ms. PUSTAY. Absolutely. I’ll send you the paragraph that 

says—— 

Mr. MEADOWS. So do you believe it’s in there for 10 years? 

Ms. PUSTAY. What I know is in there is a provision that allows 

for an extension beyond 30 working days. 

Mr. MEADOWS. I yield back. Thank you. 

Chairman CHAFFETZ. Thank you. 

And we would be interested if you’d send that to the committee 

and help articulate that for us. That it would be most helpful. 

Thank you. 

Ms. PUSTAY. Of course. 

Chairman CHAFFETZ. We’ll now recognize the gentleman from 

Virginia, Mr. Connolly, for 5 minutes. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 


AKING-6430 with DISTILLER
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Ms. Barr, I must say I am reeling from the stunning revelation 

that you have no emails from two former Secretaries of State who 

covered the entirety of the Bush administration. And I want to 

make sure I understood your answers to Mr. Cummings very clearly. You are the top FOIA official at the Department of State. Is 

that correct? 

Ms. BARR. Yes, sir. 

Mr. CONNOLLY. And if I understand your sworn testimony, you’re 

saying that as of right now the State Department has not been able 

to identify any emails from Secretary Powell or Secretary Rice. Is 

that correct? 

Ms. BARR. What I was saying is that the State Department did 

not have any emails that were responsive to the request. 

Mr. CONNOLLY. Do you have other emails? 

Ms. BARR. I know that we have other emails for Secretary Rice. 

I’m not sure what we have in our collection for Secretary Powell. 

My statements were based on what I understood to be a summary 

of how we had requested a number of former Secretaries to come 

back to us with whether they had official records. 

Mr. CONNOLLY. Well, now, Ms. Barr, my time is limited. 

Ms. BARR. Okay. 

Mr. CONNOLLY. I’m going to help you clarify your testimony. 

Ms. BARR. Okay. 

Mr. CONNOLLY. So are you saying you actually do have emails 

from Secretary Powell, they just—— 

Ms. BARR. I’m not sure if I have actual emails from Secretary 

Powell in general. Is that what you’re asking me? 

Mr. CONNOLLY. I’m asking is there any evidence at all of any 

emails from Secretary Powell on his official or personal email accounts that you have access to as the head FOIA official for the Department of State? 

Ms. BARR. I know that he did not provide any copies of emails 

of official records after—— 

Mr. CONNOLLY. Really, for 4 long years? 

Ms. BARR. Please let me finish, okay? 

Mr. CONNOLLY. Yes. But please do so in a concise fashion. I only 

have 5 minutes. 

Ms. BARR. Yes, sir. 

Mr. CONNOLLY. Go ahead. 

Ms. BARR. We don’t have any emails that were responsive to our 

request. 

Mr. CONNOLLY. No, you keep on using that phrase. Do you have 

any emails from Colin Powell that you have access to? 

Ms. BARR. Because my personal knowledge of what we might 

have, in general, I’m not sure. 

Mr. CONNOLLY. You’re not sure. 

Ms. BARR. But I thought that the question that was asked of me 

before was much more specific. 

Mr. CONNOLLY. Do you have access to any—since you’re not sure 

about Colin Powell, which I still find stunning—there’s no evidence 

of any, but you’re not sure. What about Secretary Condoleezza 

Rice, do you have—— 

Ms. BARR. I know that she used a state.gov account. 

Mr. CONNOLLY. So you have access—— 


AKING-6430 with DISTILLER
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Ms. BARR. And I’m sure we have access to them. But I thought 

that the question was in the context of responsive material or—— 

Mr. CONNOLLY. What do you mean by responsive material? 

Ms. BARR. Because we had a request. 

Mr. CONNOLLY. Yeah. 

Ms. BARR. That’s what I thought. 

Mr. CONNOLLY. And your testimony was there is no evidence of 

extant emails from her responsive to the request. 

Ms. BARR. Yes. 

Mr. CONNOLLY. None. 

Ms. BARR. We didn’t provide any. 

Mr. CONNOLLY. So what happened to them? 

Ms. BARR. Well, if it’s not responsive we don’t supply it. But that 

doesn’t mean that there are no emails, period, from her. 

Mr. CONNOLLY. But there are some emails from her. You’re not 

sure about Colin Powell, but you are sure about Secretary Rice? 

Ms. BARR. I know that Secretary Rice used a state.gov account. 

Mr. CONNOLLY. Which means they’re preserved somewhere. 

Ms. BARR. Somewhere. 

Mr. CONNOLLY. Have you ever seen one? 

Ms. BARR. No, not personally. 

Mr. CONNOLLY. I find that amazing as well. Does the Federal 

Records Act apply to both Secretaries Powell and Secretary Rice? 

Ms. BARR. Yes. It applies to all. But again Federal records can 

be more than email. 

Mr. CONNOLLY. I understand that, but let’s stick with emails for 

a minute. 

Ms. BARR. Okay. 

Mr. CONNOLLY. So is it compliant with the Federal Records Act 

to in fact wipe out emails—— 

Ms. BARR. No. 

Mr. CONNOLLY. —whether they are on your personal account or 

your official account? 

Ms. BARR. It is not. We ask each employee to preserve official 

records, and that’s a responsibility for every employee. 

Mr. CONNOLLY. Right. 

Ms. BARR. And we have to depend on individual employees to 

carry out their responsibilities. 

Mr. CONNOLLY. So just to summarize, and please correct me if 

I get it wrong, your testimony is you’re unaware of any surviving 

emails from Secretary Powell responsive—— 

Ms. BARR. You said personally. 

Mr. CONNOLLY. I understand. But you have a title. Presumably 

you’d know, if anyone knew. But we’ll use your phrase, responsive 

to the request. 

Ms. BARR. Yes. 

Mr. CONNOLLY. In that lane, there are no surviving emails from 

Secretary Colin Powell that you’re aware of? 

Ms. BARR. That are responsive to the request. 

Mr. CONNOLLY. And with respect to Secretary Rice, similarly, 

you’re unaware of any surviving emails from Secretary Rice responsive to the request? 

Ms. BARR. That is correct. 


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Mr. CONNOLLY. There may be or, in fact, your guess is there are 

surviving emails from her, but they are outside that lane of responsive to the request? 

Ms. BARR. Yes, sir. 

Mr. CONNOLLY. Thank you. 

Chairman CHAFFETZ. I thank the gentleman. 

We now recognize the gentleman from Georgia, Mr. Hice, for 5 

minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

Yesterday, as you well know, each of you, this committee heard 

testimony from several esteemed members of the press and outside 

groups who’ve experienced tremendous problems with FOIA requests. And, quite frankly, I was shocked and astonished by the 

testimony we heard yesterday. 

Several comments stick to my mind, one in particular by Tom 

Fitton, the president of Judicial Watch, who used the phrase 

‘‘criminal obstruction’’ to describe the manner in which the IRS has 

handled FOIA requests having to do with the IRS’ targeting of conservative groups. He also said that an agency official actually told 

him that if you scrutinize the government, the government will 

scrutinize you. 

Moments ago, Ranking Member Cummings said that all of you 

are making things sound rosy. We’re not talking about a rosy situation here. We have a mess with potential criminal obstruction taking place. 

Ms. Howard, is that what Tom Fitton described common practice 

with the IRS? 

Ms. HOWARD. It’s not my experience that it’s any practice within 

the IRS. I see no evidence of criminal wrongdoing or of any intent 

to do anything but make records available. 

Mr. HICE. So you see no targeting take place. You would deny 

what has come out pretty nationally. 

Ms. HOWARD. Outside of my area of expertise. I can only speak 

to the records production. 

Mr. HICE. If someone makes a FOIA request to the IRS is that 

person potentially now a target for retaliation? 

Ms. HOWARD. No, sir. 

Mr. HICE. Okay. So you would deny that there has been any type 

of retaliation, audits, that type of thing from the IRS because of 

people are so-called scrutinizing? 

Ms. HOWARD. I’m simply saying that in my experience the way 

in which FOIA requests come in, they are logged into a system. 

The folks who work the FOIA requests have access to that system. 

The rest of the IRS has no need to have access to that system. So 

I’m not sure that it’s common knowledge—— 

Mr. HICE. That’s not my question. My question is, has the IRS 

participated in retaliation through audits or whatever because people are requesting FOIA information or what may be perceived as 

scrutinizing the IRS? 

Ms. HOWARD. I have no direct knowledge of the audit side of the 

house. That’s not my area of expertise or familiarity. 

Mr. HICE. But you do have knowledge of the FOIA side of things? 

Ms. HOWARD. I have knowledge of the FOIA side of things. 


AKING-6430 with DISTILLER
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Mr. HICE. And you’re denying there would be any such retaliation. 

Ms. HOWARD. I have not shared any information with anyone 

who would be in a position to retaliate. 

Mr. HICE. Okay. Well, let me go further to a comment you said, 

made a little bit earlier in discussion with the chairman regarding 

Lois Lerner. 

Are you saying—and I just want to clarify your testimony here 

today—are you saying that there was no special treatment that 

was given to her for protection, in spite of the fact that you yourself 

said that her case was the tip of the iceberg? 

Ms. HOWARD. What I meant was that the request for her emails 

was just part of the request that this committee and other investigators made for information on the (c)(4) issue. 

One of things I do want to clarify—— 

Mr. HICE. Please be quick. 

Ms. HOWARD. Okay. Is that the title Governmental Liaison in my 

title really is not the liaison with Congress. It’s liaison with State 

and other Federal agencies and the data exchanges that we do with 

them. That’s where my area of responsibility is, in addition to 

FOIA. So a lot of the requests that would come from Congress 

would not automatically land on my desk. 

Mr. HICE. We’re not talking about requests from Congress. 

Ms. HOWARD. You’re talking about FOIA requests. 

Mr. HICE. We’re talking about FOIA requests and other requests. 

We’re trying to get to the bottom of what appears to be outright 

obstruction, and we’re getting a rosy picture that, quite frankly, is 

not an accurate picture. 

I want to shift over, Ms. Neuman, to you. In your testimony you 

mentioned that your agency avoids FOIA requests that might be 

operationally sensitive material. Is that a correct—— 

Ms. NEUMAN. No, it’s not. We don’t avoid any FOIA requests, but 

we do consider FOIA requests that may be seeking information 

that is operationally sensitive and may be protected. 

Mr. HICE. Is operationally sensitive, does that include anything 

that your agency would not want the public to know or see? 

Ms. NEUMAN. No, no. It would include information about law enforcement, investigatory techniques, for example, national security 

issues. And when we get a request—— 

Mr. HICE. So there would be no other case where information is 

denied. Listen, we had testimony one after another after another. 

And I don’t know where you guys get some of your information, 

quite frankly. We had people all over the board saying the average 

wait is years to get FOIA responses. 

I wish I had more time. My time is running out. But the FOIA 

request is absolutely essential to government transparency and the 

constitutional rule of law, and the evidence is abundant that it is 

at least being avoided, if not totally obstructed, and this is an issue 

we have got to get to the bottom of, get to the root of, and you folks 

here are part of the problem. 

Mr. Chairman, I yield back. 

Chairman CHAFFETZ. Thank you. 

I now recognize the gentlewoman from Illinois, Ms. Duckworth, 

for 5 minutes. 


AKING-6430 with DISTILLER
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Ms. DUCKWORTH. Thank you, Mr. Chairman. 

Ms. Barr, in September of 2012 the OIG for the State Department issued a report on the Department’s FOIA program. I’m looking at it now. It’s ‘‘Inspection of the Bureau of Administration, 

Global Information Services, Office of Information Programs and 

Services.’’ And the report states: ‘‘The Department’s FOIA process 

is inefficient and ineffective.’’ 

Are you familiar with this report? 

Ms. BARR. Yes, I am. 

Ms. DUCKWORTH. I know you had only been on the job just a few 

months when it was issued. But I wanted to ask you a little bit 

more about it. The report focused on the Office of Information Programs and Services. That office is within the Bureau of Administration, I understand, and you serve as the Assistant Secretary for 

that Bureau. Is that correct? 

Ms. BARR. Yes, that is correct. 

Ms. DUCKWORTH. I’d like to go through some of the issues raised 

in the report. It said about the Office of Information Programs and 

Services, and I just want to quote the report, it says: ‘‘Persistent 

neglect of fundamental leadership responsibilities and management 

practices has had profound consequences in IPS. The OIG team’s 

observations, discussions with IPS staff, and the responses to OIG’s 

questionnaires indicated an office with problematic morale, perceptions of favoritism, micromanagement practices, and confused lines 

of authority.’’ 

This really concerns me. And I understand that you’d only been 

on the job just 6 months, so this investigation probably took place 

before you got there. But how did you respond to those findings? 

Ms. BARR. Well, I took those, that OIG report, very, very seriously. It was within the first 6 months of my tenure, and I immediately became involved in doing everything I could to address the 

issues. 

In addition to just devoting my personal time to doing whatever 

I could to make sure that employees received proper leadership 

training, that there were more clear lines of authority, we actually 

moved some people around. One part of the problem was that there 

were supervisors who were not physically located close to the employees that they were supervising. 

In addition to that, at that time I did have some positions that 

I was able to reallocate to that section. We also had a number of 

vacancies. And, in fact, at the beginning of that period when the 

report was being released we were able to hire a new director who 

made a huge difference in that section. 

It is something that I am always involved with, with any of my 

units, but this report was like the first very negative report I’d received on one of my units when I started, so I took it very seriously. 

Ms. DUCKWORTH. Would you say that this is an ongoing process 

for you? Are you still dealing with the issues in the report? 

Ms. BARR. Yes. We’ve closed most of the recommendations, but 

some of the recommendations that involved other bureaus, we are 

still working on it. We have to do a quarterly report to the IG, so 

it’s something that I talk to the senior management in that section 

about all the time. 


AKING-6430 with DISTILLER
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Ms. DUCKWORTH. Okay. The report also found flaws in the Department’s records management, and it stated that the Department’s records management infrastructure is inefficient and ineffective. It also said that failure to develop and implement electronic 

systems has resulted in poor performance. 

Is the State Department overall taking steps to improve its 

records management processes? 

Ms. BARR. Yes, we are. First of all, we are participating in a government-wide working group that is dealing with records management. And I have been in a couple of those meetings myself, and 

I can assure you that there are very passionate and involved people 

working very hard on this. 

In addition to that, as I mentioned earlier in my oral testimony, 

the Secretary himself is very much committed to preservation and 

transparency and has asked the OIG to look into a number of 

issues, and what we are doing on records management is one of 

those issues. 

Ms. DUCKWORTH. Thank you. Well, I hope that the State Department will continue to make these priorities a top goal for the agency. FOIA is certainly a critical tool for Americans to demand the 

accountability that they deserve from their government, and I’m 

sure you know that this—I’m sure this committee and myself personally will be following up to make sure that that process continues. Thank you. 

I yield back, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentlelady. 

And we’ll now recognize the gentleman from Georgia, Mr. Carter, 

for 5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

Mr. Chairman, members of the panel, in preparation for this 

hearing I actually used my search engine on my computer to look 

up FOIA requests, and I was quite surprised and somewhat disappointed, I have to be honest with you, that one of the results is 

what I hold in my hand. And this is a handout from the Web site 

of the minority leader, the minority party leader in the Senate, 

Senator Harry Reid. It is a document that encourages deferred action applicants to file FOIA requests, to file FOIA requests for 

criminal records and immigration files so that the lawful permanent residents who are here now can actually find out and be prepared when their parents or their children file for deferred status. 

I was really shocked. It is quite impressive. It offers tips as to 

what they should do to file the FOIA request, but it clearly states 

in this handout, it clearly states that ICE, that the United States 

Citizenship and Immigration Services is not currently accepting 

any applications because of the court order that we are all familiar 

with. Yet it still encourages them in this document to go ahead and 

file. It still encourages them to do that. 

Ms. Neuman, I want to ask you, in the last fiscal year the FOIA 

backlog at DHS has more than doubled. Why is this? Do you know 

why it’s more than doubled? 

Ms. NEUMAN. Congressman, the FOIA backlog has more than 

doubled in part because we’ve received an enormous increase in the 

number of requests for fiscal year 2014. ICE and USCIS are the 


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recipients of most of these requests as many of these requests seek 

immigration-related records. 

Mr. CARTER. So you do think that it’s a result of people encouraging these applicants to file FOIA requests. 

Ms. NEUMAN. No, sir, I don’t. I can’t speak to the many events 

that take place outside of DHS that trigger searches in requests. 

We do focus on trying to fulfill those requests. 

Mr. CARTER. But you do admit that those requests have been related to immigration requests. 

Ms. NEUMAN. I am saying, if I understand your question correctly, that a significant number of the requests received by the 

Department are requests for immigration records. 

Mr. CARTER. Okay. Fair enough. Okay. 

In your opening statement you said that the number of requests 

through DHS has increased over 182 percent since—— 

Ms. NEUMAN. Since 2009. 

Mr. CARTER. Since President Obama took office, that’s correct. Is 

that correct? 

Ms. NEUMAN. Since he issued his open government directive. 

Mr. CARTER. Since he issued his open government directive. 

Ms. NEUMAN. 2009, yes, sir. 

Mr. CARTER. So you think it is a result of the deferred action program. 

Ms. NEUMAN. Again, I can’t speak to the many events and activities outside of the Department that may trigger a surge in FOIA 

requests. I can’t speak to whether or not anyone is encouraging requests and whether those words of encouragement might increase 

the filing. 

Mr. CARTER. Ms. Neuman, are you familiar with the G–639 

form? 

Ms. NEUMAN. I can’t say that I am off the top of my head. 

Mr. CARTER. Okay. When did you take over in this department? 

Ms. NEUMAN. At the end of fiscal year 2013. 

Mr. CARTER. Okay. The G–639 form I believe was just introduced 

in your Department this year, so I would think that you would be 

familiar with it. 

Ms. NEUMAN. And if you might remind me what that is. 

Mr. CARTER. Okay. Well, it has to do with the applicants that— 

it was created for the FOIA requests from those who were seeking 

information on DACA and DAPA to help expedite that. Do you 

know whether that form has been used, the increase in the usage 

of that form? 

Ms. NEUMAN. I personally don’t have awareness of the specific 

form that you’re talking about. I would be happy to consult with 

my staff and get back to you. 

Mr. CARTER. Well, I hope you will. I would think that you would 

have complete awareness of that, being the director, if there was 

a new form implemented in order to expedite some of the FOIA requests that are coming through. 

Ms. NEUMAN. I’m not aware of specifics with respect to the processing of specific cases or specific types of cases. 

Mr. CARTER. Okay. Well, can you get back with us on that—— 

Ms. NEUMAN. Absolutely. 


AKING-6430 with DISTILLER
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Mr. CARTER. —and please provide for this, not only that, but 

what it’s used for specifically? 

Ms. NEUMAN. Absolutely. 

Mr. CARTER. Because that’s what I understand it’s used for. And 

if that form has been used and how much it’s increased. 

Ms. NEUMAN. I’d happy to do that. 

Mr. CARTER. Thank you. I appreciate that. 

I want to mention to you as well, Ms. Neuman. I have a bill, H.R. 

1615, that I am introducing to address the backlog of FOIA requests at DHS. As you know, the majority of FOIA request backlogs exist at DHS, majority throughout the government, so this is 

something. I hope that you will look at it. I hope it will be something that can assist you and help you and help us to eliminate 

this backlog as best we can. 

Ms. NEUMAN. Thank you. 

Mr. CARTER. Thank you, Mr. Chairman, and I’ll yield back. 

Chairman CHAFFETZ. Thank you. 

I will now recognize the gentlewoman from the Virgin Islands, 

Ms. Plaskett, for 5 minutes. 

Ms. PLASKETT. Thank you very much, Mr. Chairman. 

Good morning, witnesses, good morning to you all, and thank you 

for the information that you’re providing to us. 

One of the things that I really wanted us to focus on is my colleagues here discussed that there is a problem, and everyone is 

aware that there is a problem. I don’t think that you sitting here 

are the problems. I think that there are processes and directives 

and issues that have happened within your agencies that create 

these backlogs that we’re talking about, and I’d really like to try 

and get to the root of what is the reason for this. 

We’ve talked about in some instances, Ms. Pustay, as the Director of the Office of Information Policy, that agencies are receiving 

more and more FOIA requests, correct? And you highlighted in 

your testimony that the Federal Government received 714,231 new 

FOIA requests in fiscal year 2014. Is that correct? 

Ms. PUSTAY. That’s correct. 

Ms. PLASKETT. In the beginning of fiscal year 2009, I understand 

that there were 557,000. 

Ms. PUSTAY. Right. 

Ms. PLASKETT. That’s an increase of 28 percent. 

Ms. PUSTAY. Exactly. 

Ms. PLASKETT. So that’s one variable that becomes a problem for 

us, which is the increase in the number of FOIA requests. 

Ambassador Barr, you spoke as well, and I understand that the 

Department of State has an increase in over 300 percent of FOIA 

requests. Is that correct? 

Ms. BARR. Yes, since 2008. 

Ms. PLASKETT. So that’s one side of the equation. I think what 

we haven’t really talked about is the other side, which is the 

amount of resources that you have. And I would have hoped that 

you all would have brought that to light in some of your testimonies. So I wanted to dig into that a little bit as well. 

So in 2009 the Open Government Directive instructed agencies 

with sizeable FOIA backlogs to try and reduce those by 10 percent. 

Was that a directive that was given to each one of you? 


AKING-6430 with DISTILLER
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Ms. PUSTAY. Yes. 

Ms. PLASKETT. Yes? 

Ms. PUSTAY. Correct. That’s issued to everyone. 

Ms. PLASKETT. Was everyone issued that? 

And, Ms. Pustay, you mentioned the government shutdown in 

your testimony, and you said: ‘‘We roughly estimate that this 3- 

week period could have resulted in 32,000 more FOIA requests 

being processed.’’ Right? 

Ms. PUSTAY. That’s correct. 

Ms. PLASKETT. What are the resources? Have you increased the 

resources that you have to address these backlogs? 

Ms. PUSTAY. Well, I can tell you that the challenges that we’ve 

identified, that agencies are facing with backlogs are, number one, 

as you already have mentioned, the steady increase in incoming requests. Secondly, staffing has been at its lowest level. This past fiscal year it was lower than it’s been for 6 years. So resources, hiring 

freezes, government shutdowns where requests can come in but 

there is no one at the government that can process them, they all 

impact backlog. 

Ms. PLASKETT. So, Ms. Pustay, with that, you’re talking about 

the decreases. 

Ms. PUSTAY. Right. 

Ms. PLASKETT. Your Office of Information Policy during fiscal 

year 2014, there were 3,838 full-time FOIA staff devoted to the administration of FOIA throughout the government. We understand 

that that is a 9 percent decrease in the amount of full-time FOIA 

staff from the year before. Does that figure sound correct? 

Ms. PUSTAY. Well, it’s certainly not the size of OIP. We’re about 

43 people at OIP. I think you’re talking about—— 

Ms. PLASKETT. Throughout government to handle FOIA requests. 

Ms. PUSTAY. Yes. So definitely the staffing levels across the government have decreased. 

Ms. PLASKETT. And how does that impact the processing of these 

FOIA requests? 

Ms. PUSTAY. We are trying very hard to find ways to gain efficiencies in processing, utilizing technology, and that’s a big factor 

that we’ve been—a big area where we’ve been putting a lot of emphasis. And there are efficiencies to be gained with technology. But 

at the end of the day you do need trained FOIA professionals who 

can analyze documents for disclosability, and so there’s just no substitute for personnel to actually handle requests. 

Ms. PLASKETT. So it’s your belief that having additional staff to 

process these backlogs as well as the additional FOIA requests that 

come in would be the best way in which to handle these backlogs. 

Ms. PUSTAY. I think having resources for both staff and technology together would be a very effective way. 

Ms. PLASKETT. Ms. Neuman, would you agree that that would 

help your agency? 

Ms. NEUMAN. In my case, I don’t want to get too far ahead of the 

independent review that I mentioned, we also are deploying technology because doing so does create efficiencies. But I can’t dispute 

at this point the value of staff resources along with the enhanced 

use of technology. 


AKING-6430 with DISTILLER
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Ms. PLASKETT. And Secretary Barr, Ambassador Barr, would you 

say that would assist you as well? 

Ms. BARR. Yes, I do believe it would assist me. But I think that 

within many agencies we are all trying to meet our priorities 

and—— 

Ms. PLASKETT. So are the FOIA requests a priority? 

Ms. BARR. Yes, it is a priority. 

Ms. PLASKETT. So what would be the best way to address that 

priority? 

Ms. BARR. I think we have to continue to work with technology 

to see if we can gain additional efficiencies. But I also see that the 

increasing requests are also part of the American public’s increasing interest in what we do, and I don’t expect that to abate any 

time soon. 

Ms. PLASKETT. So then how do you address it? With the technology alone or with staff as well? 

Ms. BARR. Some staff as well. But I know we are all competing 

for resources—— 

Ms. PLASKETT. Well, that’s what you come to Congress for, is to 

ask us for those resources. So you have an opportunity here to do 

that, and I would think that you would avail yourself of that opportunity. 

Ms. BARR. Yes, ma’am. 

Ms. PLASKETT. I yield back my time. 

Chairman CHAFFETZ. Before you yield back, if you will yield me 

a moment. 

Ms. PLASKETT. Of course, Mr. Chairman, always. Well, not always, but in this instance, yes. 

Chairman CHAFFETZ. Let’s get to the question first, and then 

we’ll see, yeah. 

Ms. Pustay, you said across government that resources are done, 

if I heard you correct. 

Mr. Fontenot, can you please clarify, from your perspective, 

what’s happening? You wrote in your testimony something different than that. 

Mr. FONTENOT. Yes. Treasury-wide, over the past several years, 

we’ve increased our resources related to FOIA. Specifically, at the 

end of 2014 we had 151 full-time equivalent employees working in 

FOIA, and that’s a 21 percent increase over the prior 2 years. 

Chairman CHAFFETZ. So to say that personnel resources across 

the board government-wide, Ms. Pustay, are down is not accurate. 

In fact, Mr. Fontenot wrote in his testimony: ‘‘Beginning in 2013, 

my team doubled the number of full-time employees dedicated to 

FOIA.’’ That’s not a decrease. It’s an increase quite dramatic, actually. 

We appreciate the dedication and commitment that you’ve made, 

Mr. Fontenot. 

Ms. PUSTAY. Mr. Chairman, if I could just correct the characterization. When I’m giving the figure about staffing being decreased, 

I’m giving an overall number. The number of requests overall has 

increased, overall staff has decreased. 

Chairman CHAFFETZ. I understand the requests, but you were 

talking about personnel to deal with those. And some agencies have 


AKING-6430 with DISTILLER
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evidently prioritized it more than others because they doubled the 

number of personnel at the Department of Treasury. 

Ms. PUSTAY. I am giving the figure for overall. Each agency reports in their annual FOIA report their number of FOIA staffing, 

so it’s very easy to look, right on foia.gov, to see which agencies increased, which decreased, the exact numbers for all of them. It’s all 

publicly available. 

Chairman CHAFFETZ. You said they all decreased, and Mr. 

Fontenot said he doubled it. 

Ms. PUSTAY. My statement is, and I’m sorry that it’s misunderstood, was that overall staffing has decreased. Government figure 

overall. That’s what I’m talking about. 

Mr. CUMMINGS. Would the gentleman yield? 

Chairman CHAFFETZ. Sure. 

Mr. CUMMINGS. Just real quick. I understand what you were saying about overall because I said it in my opening statement. 

Ms. PUSTAY. Thank you. 

Mr. CUMMINGS. And I just wanted to make sure we are clear. Although there are agencies that may have increased, overall government with regard to FOIA personnel has decreased. 

Ms. PUSTAY. Absolutely. Thank you. 

Chairman CHAFFETZ. And further yielding, part of my point is 

some think it’s in their best interest to just slow this think down, 

just ride it out, and others have given it more priority. But anyway, 

we’ll continue the discussion. 

We’ll now recognize the gentleman from Pennsylvania, Mr. Cartwright, for 5 minutes. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. 

Mr. Chairman, in the wake of the Edward Snowden revelations, 

obviously there has been a debate and public outcry over what 

some are seeing as the government’s overly aggressive reaches into 

people’s personal lives. I don’t think most people would question 

that the need for the government to retain secrecy in certain areas 

to protect our national security is important. In my mind, though, 

there is still an important role for FOIA requests to shine a light 

on government actions that might not be in line with the core values that make our country great. 

Ms. Neuman, I want to ask you, with decreased funding and a 

shrinking number of FOIA staff, what has the effect been on the 

public’s ability to maintain that visibility and that transparency 

and to hold judicial, legislative, and executive branches accountable? 

Ms. NEUMAN. Well, certainly with the backlog, that has impacted 

the speed with which we can respond to requests and fulfill those 

requests. I will say that DHS processed 238,031 requests, up from 

204,332 in fiscal year 2013, so that’s a 16 percent increase in the 

number of processed FOIA requests from the previous fiscal year. 

Is it where I would like to see it? No, of course not. I would like 

to see greater improvements precisely to fulfill the values of transparency and shining a light on executive branch operations, as you 

know, that’s embodied in the statute. 

Mr. CARTWRIGHT. Great. 

Ms. NEUMAN. And our professionals are working very hard to fulfill those requests and shine that light. 


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Mr. CARTWRIGHT. It wouldn’t hurt to have more professionals 

doing this man and woman power work, right? 

Ms. NEUMAN. Well, let answer that this way. These are lean 

times for all Federal agencies, as you know. 

Mr. CARTWRIGHT. Well, you’re being very diplomatic, Ms. 

Neuman, and appreciate it, but I have to move on. 

In his testimony, David McCraw says that there are three primary areas of FOIA delays that need to be addressed. First, the 

culture of unresponsiveness; second, agencies deferring responses 

to other agencies; and third, that there are times when the information being requested has been submitted by companies to regulators, and so the agency has had to resolve private industry privacy concerns. 

Congress has been working on legislation to expedite the sharing 

of cyber threat information, not just between private companies but 

also within the government. Now, here on this committee we have 

passed out of this committee with approval H.R. 653. This committee reported it out with approval this year. 

Ms. Pustay, would you comment on 653? Are you familiar with 

that legislation? 

Ms. PUSTAY. I’m not prepared to comment on any specific legislation, Congressman. 

Mr. CARTWRIGHT. Okay. 

Ms. PUSTAY. I certainly can speak to some of the concepts that 

you just mentioned. 

Mr. CARTWRIGHT. Well, let’s do that. Do you have recommendations on how these efforts might be applied to increasing government transparency? 

Ms. PUSTAY. Well, I think one of the key things that we’ve been 

doing, just to take an example, after meeting with civil society representatives during my tenure as Director of OIP, I have been very 

impacted by the fact that the basic concept of better communication 

can really go a long way to making the FOIA process seem more 

understandable and flow more smoothly and prevent disputes from 

happening. 

So in that sense it has been a focus of mine. I have done two separate guidance articles on the importance of good customer service 

and making sure that requesters understand what’s happening 

with their request, that they have a point of contact at an agency. 

Mr. CARTWRIGHT. Well, good. I don’t mean to cut you off. 

Ms. PUSTAY. Yes, sir. 

Mr. CARTWRIGHT. But would you forward those to my office? 

Ms. PUSTAY. Absolutely. Absolutely. 

Mr. CARTWRIGHT. Thank you for that. 

I want to conclude by following up on something Mr. Connolly 

from Virginia was talking about. He was talking about Secretary 

of State Condoleezza Rice’s emails. And, Ms. Barr, you were testifying that your understanding is that she used an official account 

to do emails, although you had not ever seen one of those emails 

from her on that account or any other. 

My information is that Secretary Rice has not disclosed whether 

she used a personal email account for official business. She has not 

disclosed whether she used a private email account for official business. And, Ms. Barr, can you confirm or deny that? Do you know 


AKING-6430 with DISTILLER
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either way on that question? It’s a yes or no, and I have to hurry. 

Yes or no, do you know? 

Ms. BARR. Secretary Rice told us that she did not use personal 

email for official business. 

Mr. CARTWRIGHT. Well, I’m going to invite my dear friend from 

South Carolina, who I know is looking into the question of emails 

of Secretaries of State to really delve into the question of whether 

Secretary Condoleezza Rice used private email accounts for official 

business. 

And with that, Mr. Chairman, I yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Good morning to all of our witnesses. 

Ms. Barr, you previously testified that the former Secretary’s 

email arrangement with herself was not acceptable. Those are the 

words you used, not acceptable. What made it not acceptable to 

you? 

Ms. BARR. I know that in my oral statement today I was talking 

about it. Our backlogs were not acceptable. But I think in my 

former testimony that was being asked if I thought in general it 

was okay to use—if any employee would use a private email account. 

Mr. GOWDY. Right. No, you are exactly right. It was in response 

to a question when you testified before the Senate. And I am sure 

the circumstances were, was it okay to exclusively use personal 

email with which to conduct public business, and you used the 

phrase not acceptable. So I am not asking about the backlog. I am 

asking about the exclusive use of personal email with which to conduct public business. What makes it not acceptable? 

Ms. BARR. What we want to make sure that we do under the 

Federal Records Act is to capture official records so that they are 

available to be a history of what we do and how we come to those 

decisions. We don’t like for records to be separated from the agency, so we were very pleased to have these records back in our possession so that they are part of our collection and that we can 

make them available to the public. 

Mr. GOWDY. Do you recall why former Secretary Clinton said she 

availed herself of a personal server and used exclusively personal 

email? Do you recall the explanation given? Or have you been given 

an explanation for why she went that route? 

Ms. BARR. I can’t speak to that authoritatively. My understanding is that the Secretary said that she did it as a matter of 

convenience. I don’t know that personally, sir. 

Mr. GOWDY. Well, that is my understanding too, in part because 

that is what she said. I guess my next question would be, if it was 

solely for convenience, why not return the records the day you separated from the State Department? 

Ms. BARR. I have no information on that, sir. 

Mr. GOWDY. Has she provided any explanation for why she retained care, custody, and control of those public records for almost 

2 years after she separated? 

Ms. BARR. I am not aware of that, sir. I’m aware that we have 

them now. 


AKING-6430 with DISTILLER
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Mr. GOWDY. Do you know what prompted the former Secretary 

to return those public records to the public domain? 

Ms. BARR. We sent a letter to Secretary Clinton, as well as to 

Secretaries Rice, Powell, and Albright, and asked them if they had 

any records that might have been generated on non-Department 

systems that should be part of our official records. 

Mr. GOWDY. How were you able to comply with FOIA requests 

in that almost 2-year interim between the time you wrote the letter 

and the time that she retained care, custody, and control of all of 

those public records? 

Ms. BARR. Sir, emails are not the only records that we use. 

Mr. GOWDY. Right. But it’s part of the record. So if you received 

a FOIA request that would have included emails, how would you 

have been able to comply with that FOIA request given the fact 

that you had neither care, custody, nor control of those records? 

Ms. BARR. Well, we would still search all of our records, and we 

would still look at things like cables, decision memos, other types 

of documents that we keep to provide a record of what we do, agendas. 

Mr. GOWDY. So you would have given what you had, but you 

would have made no representation that what you provided was 

complete, because necessarily it could not have been complete because you didn’t have the full panoply of public records. 

Ms. BARR. Well, we always look at what we have, sir. 

Mr. GOWDY. Right. You can’t give it if you don’t have it, which 

then raises the next question I have. I was listening to my friend 

from Maryland and my friend from Virginia make note of the fact 

the former Secretary did return emails. What guarantee can you 

give my fellow citizens that what you have now is the complete 

public record? Have you been through all of her records to determine what’s public and what’s private? 

Ms. BARR. We are processing them now. And, no, we have not 

completed our review. 

Mr. GOWDY. You’re processing what was originally on the server 

or are you processing what she provided to you? 

Ms. BARR. We are processing what she provided to us. 

Mr. GOWDY. Do you know what mechanism she would have gone 

through to determine herself what was public record and what was 

private or what may have been a mixed use? Do you know who 

made that initial determination for the former Secretary? 

Ms. BARR. She has told us that erred on the side of inclusion. 

Mr. GOWDY. So did she tell you that she personally reviewed all 

of the emails or did she retain counsel to do so? 

Ms. BARR. I am not aware of whether she personally did it or if 

she retained counsel. 

Mr. GOWDY. Well, I thank you for answering my questions. I am 

over time. Suffice it to say I have a number of additional questions 

in this area, and perhaps at some point I will able to ask them. 

Mr. CUMMINGS. Will the gentleman yield just for a moment? 

Mr. GOWDY. I am out of time. But if the chairman says I’m not, 

then I’m not. 

Mr. CUMMINGS. Just one question. Ms. Barr, what emails are you 

processing for Secretary Powell and Secretary Rice? You said you 

are processing emails. 


AKING-6430 with DISTILLER
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Ms. BARR. For Clinton. 

Mr. CUMMINGS. Yeah. But what emails are you processing for 

Secretary Powell and—listen to me—Secretary Powell? Any? 

Ms. BARR. No. 

Mr. CUMMINGS. Are you processing any for Secretary Rice? 

Ms. BARR. No. 

Mr. CUMMINGS. All right. Thank you. 

I yield back. 

Chairman CHAFFETZ. I now recognize the gentlewoman from the 

District of Columbia, Ms. Norton, for 5 minutes. 

Ms. NORTON. I understand, Ms. Barr, while we have Secretary 

Clinton’s, we don’t have any from Secretary Powell because he 

didn’t save his. Is that right? 

Ms. BARR. Yes, ma’am. 

Ms. NORTON. Thank you. 

Now, when we get a chronic problem like this that keeps coming 

back, we often set up an officer or another department or another 

part of government to help us out. So I of course noticed, indeed, 

in fact, in H.R. 653 there is the creation of a Chief FOIA Officers 

Council. It would be run jointly by the DOJ’s Office of Information 

Policy and the Office of Government Information. 

This question is initially for Ms. Pustay because your office 

would be tasked to run the Office of Government Information Services. Do you support the notion of a Chief FOIA Officers Council. 

Ms. PUSTAY. I’m not prepared today to answer any specific questions about a specific legislative proposal. But what I can tell you 

is that chief FOIA officers, who are designated high-level officials 

within each agency, designated by law with the FOIA as it currently exists, I think really hold the key to helping improve FOIA 

across the government, and we do a lot to work with chief FOIA 

officers. Because the idea there is that you want a high-level official in every agency who has authority and responsibility to make 

sure that the FOIA operations have sufficient staffing, have sufficient attention, have the resources that they need to operate. 

And gearing off that important role that a chief FOIA officer 

plays, starting in 2009 with Attorney General Holder’s guidelines, 

we created a mechanism called the Chief FOIA Officer Report, and 

every year we ask, we at OIP, at the Department of Justice, we ask 

chief FOIA officers to report to us every year on the steps they 

have taken to improve FOIA compliance. And we address a range 

of issues, use of technology, proactive disclosures, timeliness in responding to a request. And every year we have been changing the 

metrics that we ask and the questions that we ask of those chief 

FOIA officers, because as we see FOIA processes improve, or as we 

see steps taken to improve FOIA, we want to keep pushing agencies to do more and to do better. So it is an evolving process for 

us. 

So I think that we have a lot of really good mechanisms in place 

right now that take advantage of the position of the chief FOIA officer. 

Ms. NORTON. Well, let me turn to the chief FOIA officers. How 

do each of you feel about the notion of a Chief FOIA Officers Council? Would it be beneficial to you in any way? 


AKING-6430 with DISTILLER
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Ms. NEUMAN. It is an interesting idea. I would have to give that 

some thought. And after doing so, I would be happy to share my 

thoughts with you. 

Ms. NORTON. Have you given any thought to that? You are the 

ones that it seems to me ought to be consulted about this. 

Mr. FONTENOT. Yes, ma’am. I have not given thought to this as 

of now, but I am happy to take that back. 

Ms. NORTON. Well, I think the committee would benefit from 

your advice and counsel, particularly since there has been a subcommittee hearing here. The Subcommittee on Government Operations had a FOIA hearing and heard from Frederick Sadler. He 

has previously served as a FOIA officer at the Food and Drug Administration. Let me read to you what he says. ‘‘It would seem appropriate to require agency representation at the highest level possible when the individual is also the most knowledgeable. Past experience has shown that not every chief FOIA officer has the skill 

set, since this is by definition not necessarily that individual’s specialty.’’ 

Ms. Barr, I will start with you. Do you agree with Mr. Sadler’s 

comment. 

Ms. BARR. I think it would depend on how that person—each 

agency organizes this issue differently. For the State Department, 

I am the chief FOIA officer, but I also have a lot of other responsibilities. So I have a deputy assistant secretary that is an expert 

in these issues, and I consult very closely with that person. 

Ms. NORTON. What about the exchange of ideas across agency 

lines? Do you believe that sharing of information about agency experience and their ideas, their own best practices, what they have 

done right or wrong, would improve the implementation of FOIA? 

Would the FOIA officers have a view on that? 

Ms. PUSTAY. I mean, I can certainly tell you that we definitely 

think that’s incredibly important, and we have many mechanisms 

to share best practices. We have what I mentioned in my testimony, was the creation of a Best Practices Workshop Series where 

the whole idea is to identify a topic. And as I mentioned, our very 

first topic was improving timeliness and reducing backlogs. And 

then identify agencies that have achieved success in that area, and 

then have them come and speak to a gathering of anyone, every interested agency employee, and share their best practices so that we 

can leverage success across the government. 

Then what we have done at OIP is take that even further in that 

we have created a dedicated Web page on OIP’s Web site connected 

to the Best Practices Workshop Series where we list the best practices that came out of each of these sessions. We have also issued 

guidance in relation to the best practices. 

So it’s something that we have been doing already for a full year 

now, and we feel that it’s been very successful, and it’s a very important way to have agencies be able to capitalize on the good 

things and the innovations that one another is doing. 

Chairman CHAFFETZ. Thank the gentlewoman. 

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

Mr. WALKER. Thank you, Mr. Chairman. I would like to yield my 

time to the gentleman from South Carolina. 


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Mr. GOWDY. I thank my friend from North Carolina. 

Ms. Barr, I appreciate you talking with me earlier. I want to pick 

back up where we were. I was seeking some level of assurance from 

you, to the extent that you could give one, that what was produced 

to the State Department did, in fact, represent the full universe of 

what would be public records. And, again, I have no interest in private documents. I really could care less. I am interested in making 

sure the whole public universe is complete. 

So what assurance can you give the public that the State Department has everything that would be considered a public record from 

her tenure as Secretary of State? 

Ms. BARR. She has assured us that she gave us everything she 

had. And like we do with other Federal employees, we have to depend on them to provide that information to us. So we have the 

documents, and we have accepted her assurance that she has given 

us everything that she had which should be a part of our official 

records. 

Mr. GOWDY. Well, you mentioned other Federal employees, which 

got me wondering. And I wrote down a list of some of the other 

Cabinet-level folks that I have worked with in my time here. Attorney General Holder, did he have his own server? 

Ms. PUSTAY. Are you asking me? 

Mr. GOWDY. I am asking whoever can answer it. 

Ms. PUSTAY. I can let you know that Attorney General Holder 

used an official DOJ account. 

Mr. GOWDY. He did. How about new Attorney General Lynch, 

does she have a personal server? 

Ms. PUSTAY. Same as well. She is using an official DOJ account. 

Mr. GOWDY. What about President Obama, is there any indication? Because if you are going to pursue the theory of convenience, 

I can’t really imagine a busier person on the globe than President 

Obama. Did he have his own personal server? 

Ms. Barr? 

Ms. BARR. I have no knowledge. 

Mr. GOWDY. Well, the reason I am asking is because you said 

that you are doing it the exact same way you would with any other 

public official. And my point is, because of this arrangement that 

the former Secretary had with herself, you are not in a position to 

do it the same as you would with any other public official because 

Vice President Biden and President Obama don’t have their personal attorneys going through their emails to decide what to return 

and what not to return. 

I assume your position is an apolitical, nonpolitical, unbiased position. Am I correct in that assumption? 

Ms. BARR. Yes, sir. 

Mr. GOWDY. And I believe the Department of State has an inspector general. Am I right? 

Ms. BARR. Yes, and we have asked the inspector general to look 

into some of these issues. We are cooperating with them. 

Mr. GOWDY. I know you have, and I didn’t mean to suggest otherwise. Do you know who nominated the current inspector general? 

Ms. BARR. I don’t have that information at my fingertips, but I 

can get back to you. 


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Mr. GOWDY. You don’t have to, because it was President Obama. 

Do you know who controlled the Senate when he was confirmed? 

Do you know what the vote was? It was unanimous. 

Ms. BARR. I knew you were going to give me that information. 

Mr. GOWDY. It was unanimous. Those may be the only questions 

I can answer today, but I do know the answer to those two. President Obama nominated the current inspector general, and he was 

unanimously confirmed by a Senate controlled at the time by 

Democrats, which makes me think that he, like you, is a neutral, 

detached arbiter who is solely interested in separating what should 

be in the public domain from what should be purely personal. 

So why not let the inspector general look at all the records just 

to make absolutely sure, and that way we are not in a position of 

having to take someone’s lawyer’s word for it? Why not do that? 

Ms. BARR. Well, it was my understanding that—you are talking 

about the email collection, not the entire process? 

Mr. GOWDY. No. I am talking about—I mean, you have been put 

in the position of having to take a lawyer’s word that you have all 

the public records. And perhaps it is just the cynicism of actually 

being a lawyer. I am just wondering who with a fiduciary duty to 

the public can make sure that the public record is complete. Instead of the former Secretary hiring an attorney to do it, why can’t 

the attorney that works for all of us, why can’t the inspector general do it? 

Ms. BARR. So you are asking me why can’t the inspector general 

make the determination of whether we received all of the emails? 

Mr. GOWDY. Yes. 

Ms. BARR. I really can’t speculate on that. 

Mr. GOWDY. Well, I am out of time. Hopefully I will get some 

more time, and we can speculate together after that. 

I yield back to the chairman. 

Chairman CHAFFETZ. Thank you. 

I now recognize Mr. Duncan for 5 minutes. 

Mr. DUNCAN. Mr. Chairman, thank you for having these hearings. This is very, very important. And I would simply say that the 

testimony we heard in here yesterday, the record on these FOIA 

requests is simply horrendous. We heard in here yesterday Sharyl 

Attkisson say that FOIA is a pointless, useless shadow of its former 

self. She testified that it took over 10 years, 10 or 11 years, to get 

a request that she submitted. 

Another witness, Mr. Leopold, said that the Pentagon told him 

it would take 15 years to give him material, and they said they 

would only give it to him if he would agree never to file another 

FOIA request. And, of course, then the court ruled in his favor and 

said it was ridiculous that they came up with that 15-year business. 

Mr. McCraw from The New York Times who said that The New 

York Times, just that one business, had to file eight different lawsuits last year, FOIA lawsuits. And I am told there were 422 FOIA 

lawsuits just in 2014. 

We had another witness, Cleta Mitchell, who told about the years 

she had spent litigating FOIA and brought in here numerous, 

looked like about 10 or 12 notebooks full of pages that finally were 

sent to her with practically everything, thousands of pages, with 


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100 percent on most of those pages totally redacted. And it really 

was just useless. 

I can tell you the American people think the Federal Government 

is already far too big, too out of control, and far too secret. And the 

American people are not going to stand for more secrecy from the 

Federal Government. 

And I would say to each of you and to any FOIA officers that 

might be listening that if you don’t start doing better this committee, this Congress, is going to have come down very, very hard 

and come up with some legislation that I am sure none of you are 

going to want to live with at all. 

Ms. Pustay, can you assure me that if Chairman Chaffetz calls 

a hearing a year from now that we are going to hear a much better 

story than we have heard these past couple of days? I mean, you 

talked about timeliness and all these things that sound good, but 

surely you don’t accept or don’t defend a system that takes 10 or 

15 years to grant simple requests? 

Ms. PUSTAY. No, of course not. What we do every day at OIP is 

work very hard to try to help agencies improve their administration of the FOIA, and we do that through a number of ways. And 

we want fundamentally for all agency professionals who are handling FOIA requests to understand the law and understand their 

obligations. And that is why we focus so much on training and why 

we’re so happy that we were able to complete e-learning training 

resources that are now available to anyone, anywhere in the world, 

free of charge, because at its foundation we need trained FOIA professionals. 

But we also want to make sure that there is good customer service, as I mentioned, so that requesters understand the process and 

know what’s happening. We also want to use technology to find 

greater efficiencies in processing FOIA requests so that we can proceed more quickly. 

So there are a lot of things that we can do, and we are trying 

very hard to help agencies do better. 

Mr. DUNCAN. Well, I’m assuming that there are some requests 

that are granted without—I hope that there are some requests 

being granted without forcing lawsuits over it, but I am told that 

almost all of these lawsuits, these FOIA lawsuits have ended up 

with rulings in favor of the plaintiffs and against the Department. 

Ms. PUSTAY. I mean, respectfully, Congressman, that is really 

just not accurate. The number of lawsuits is really small in comparison to the number of requests we get, 700,000 requests, 400- 

some lawsuits. So it is like 1 percent of requests go to lawsuits. 

We don’t want anybody to have to go. It is an important right 

to have a judicial review of an agency’s action, but of course we 

don’t want requesters to feel that that is where they have to go. 

Mr. DUNCAN. Well, do you agree that you need to do better, that 

this system must be improved and must be faster? 

Ms. PUSTAY. We’re constantly looking for ways to improve it, and 

we constantly want things to be faster. 

I just also want to say that in terms of the results of litigation, 

the Administrative Conference on U.S. Courts, ACUS, did a study 

of just that exact point, of who prevails and who doesn’t prevail in 

FOIA lawsuits, and they found that year after year the government 


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prevailed in FOIA lawsuits over 80 percent of the time. So I want 

to correct that misstatement that was conveyed to you. 

Mr. DUNCAN. But you do accept the fact that when we have requests that are taking 10 or 15 years to grant, that the system is 

broken? 

Ms. PUSTAY. It is not that the system is broken. The system 

works well for many requesters. And, I mean, since 2009 agencies 

have responded to nearly 4 million requests. So every time a student gets their information for their paper or a reporter gets information for his article, that’s a success story for FOIA. 

But at the same time I’m not saying there are not problems, and 

I’m not saying there are not areas where we can improve, and that 

is what I try to focus on in my office really every single day, is to 

try to help agencies improve. 

Mr. DUNCAN. Well, we heard yesterday about some problems 

that we shouldn’t have been hearing about, I can tell you that. 

Thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentleman from Ohio, Mr. Jordan, for 5 minutes. 

Mr. JORDAN. I thank the chairman. 

Ms. Howard, you had an exchange earlier—I apologize, I couldn’t 

be here—but you had an exchange with the chairman where you 

referenced a special project team that was created to deal with requests for information concerning the targeting and a former employee at the Internal Revenue Service, Lois Lerner. I just had 

some basic questions. When did the special project team start? 

Ms. HOWARD. My understanding was that it started soon after 

the request came from Congress and other investigators asking for 

documents around this whole issue. So that would have been somewhere in the spring, early summer of 2013. 

Mr. JORDAN. About 2 years ago, okay, a little over 2 years. And 

that was the reason why, to deal with requests from Congress? Or 

was it also requests from outside folks, people like we heard from 

yesterday, who represented groups who had been targeted, was it 

to deal with that as well? 

Ms. HOWARD. It was, because there was a recognition that most 

of the documents would be responsive to both Congress, the investigators, and the FOIAs, and so we centralized the process for gathering them and redacting them—— 

Mr. JORDAN. And was that unusual, for the IRS to do such a 

thing, to create such an entity? 

Ms. HOWARD. I think it was a normal response to an unusual situation. I see the IRS doing this on an ongoing basis, when we have 

surges of work—— 

Mr. JORDAN. So it is not unusual for them to put together a special team? 

Ms. HOWARD. It is not unusual for us to gather together resources that are going to be focused on achieving—— 

Mr. JORDAN. Are they called special teams? I mean, I am using 

the words you—— 

Ms. HOWARD. Yeah. And if I gave you the impression that there 

was a title called special team, that’s probably not correct. 

Mr. JORDAN. I’m just using what you said, special project team. 


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Ms. HOWARD. It was a project team put together—— 

Mr. JORDAN. Okay. And who was on that team? 

Ms. HOWARD. My firsthand knowledge of that is none. 

Mr. JORDAN. You can’t tell us who was on it? 

Ms. HOWARD. I can’t tell you who was on it, no. I know that it 

was made up mostly of chief counsel, their attorneys. They pulled 

them offline to work on them. We took resources that were familiar 

with 6103. 

Mr. JORDAN. Okay, I’m going to me stop you there. You mentioned chief counsel. So was the Chief Counsel at the Internal Revenue Service part of the special project team created shortly after 

it became known that there was targeting going on approximately 

2 years ago? 

Ms. HOWARD. I have no personal knowledge. You would have to 

ask him or the Commissioner that. 

Mr. JORDAN. Well, I mean, we will do that. Is it your assumption 

or do you believe—you’re the one who brought up special counsel 

both in your response to Mr. Chaffetz earlier—not special counsel, 

but chief counsel. Do you think the Chief Counsel was part of the 

team? 

Ms. HOWARD. I think there were hundreds of attorneys that were 

part of the team, and I think that it was a production team. It was 

a way to amass documents and mass produce them. 

Mr. JORDAN. All right. And you were asked by the chairman earlier about do you have any interaction with the White House before 

you release information, and I am quoting from your response. ‘‘To 

the extent that I have been involved in responses to Congress or 

to FOIA, we have never shared information with the White House.’’ 

Accurate? That was your response? 

Ms. HOWARD. Yes. 

Mr. JORDAN. You go on to say in that same answer to the chairman: ‘‘I can’t speak for the entire IRS. That would be a question 

for the Chief Counsel or the Commissioner. I can simply speak for 

the Disclosure Office in FOIA progress. We do not interact with the 

White House.’’ 

Do you know if the special project team that was put together, 

gathering all this information, most likely had the Chief Counsel 

on it, do you know if they were checking with the White House before they gave information to Congress and/or other FOIA requests? 

Ms. HOWARD. I have no personal knowledge of how that team 

acted, except that I know that they amassed hundreds of attorneys 

to go through the documents and redact them for 6103. 

Mr. JORDAN. Do you think it’s likely that the Chief Counsel 

talked with the White House before he gave the information to 

Congress? 

Ms. HOWARD. I think it’s unlikely, but I don’t know. 

Mr. JORDAN. You think it’s unlikely. Well, that would be in direction contradiction to the memo sent to every chief counsel back 

when this administration first started, April 15, 2009: ‘‘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.’’ 


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So we have this memo from Greg Craig to all chief counsels. 

You’re telling me it’s likely the Chief Counsel of the IRS was part 

of this special project team created just to deal with requests about 

the targeting and Lois Lerner. And then you’re saying you think 

it’s unlikely that they actually checked with the White House, 

which would be a direct contradiction to what they were told to do 

by the White House Chief Counsel. 

Ms. HOWARD. Except that the memo does specify documents with 

White House equities. I’m not sure that the documents we had—— 

Mr. JORDAN. You don’t think the White House has an interest in 

knowing about information related to the Internal Revenue Service 

targeting people? You don’t think they have an interest in that? 

Equities is an interest, right? They have an interest in that. This 

is all document requests that may involve—may involve—White 

House interests. That’s pretty broad. 

And then the next paragraph gives clarification of that and says 

congressional committee requests, which you said is the reason the 

special project team was created, not to mention GAO requests, judicial responses, and FOIA requests. 

So I would say if the Chief Counsel, who is most likely part of 

this special project team, which is something I think we are going 

to find out, and the chairman will be pushing for that, if he is likely part of this special project team, he wouldn’t be following the 

memo if he wasn’t consulting with the White House. Do you agree? 

Ms. HOWARD. Sir, the special project team was put together not 

because the responses were due to Congress, but because of the volume and the number of investigators and the scope of the documents that were needed. It was a business reason, a business process. 

Mr. JORDAN. Well, I’m out of time. Thank you, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

I am going to now recognize myself. I have a series of questions 

I need to do before we wrap up, and members may have some other 

questions. 

Ms. Howard, I want to give you an opportunity to talk about the 

IT challenges that the IRS has and what you are dealing with. 

What sort of software are you dealing with, and how bad is it? 

Ms. HOWARD. I believe it was Congressman Carter when he was 

speaking referred to the fact that he had an opportunity to go onto 

a search engine on his personal computer. He put in a few key 

words that had to do with FOIA. He pushed a button, and he got 

all kinds of responses. That is just not the way it works in IRS. 

We don’t have that library of electronic documents that we can go 

in and search through a Google or Bing or any of the other search 

engines that you might have. We need the ability to actually tag 

those records so that we know what they are, who created them, 

how they were created. 

Chairman CHAFFETZ. Can you do key word searches? 

Ms. HOWARD. We can do key word searches within accounts. So 

that means if you’re going to look for emails, I would have to look 

at your account, my account, anyone’s account that might be involved, account by account, and then look within each of those 

emails. 

Chairman CHAFFETZ. You can’t do a massive look into—— 


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Ms. HOWARD. It involves downloading everything into some sort 

of massive database. 

Chairman CHAFFETZ. What software do you use? 

Ms. HOWARD. That would be a question for the IT person. 

Chairman CHAFFETZ. You don’t know what software you use on 

your computer? 

Ms. HOWARD. What software I use on my computer? 

Chairman CHAFFETZ. Yeah. 

Ms. HOWARD. Well, I have a Microsoft suite of products, including Outlook Exchange. 

Chairman CHAFFETZ. So you use Outlook. 

Ms. HOWARD. Uh-huh. 

Chairman CHAFFETZ. You can’t type a word into Outlook and 

search your database? 

Ms. HOWARD. I can my own account. 

Chairman CHAFFETZ. We’ll have to dive deeper into this. And I’d 

like actually if each of you, each of the five of you can help us understand how bad or how good you think the IT situation is. 

Ms. HOWARD. I just want to add too that once you get the documents you still have to go through line by line by line to look for 

6103 redactions and then the other exemptions within FOIA. So it 

is not just about the IT, but certainly that’s a huge thing in IRS. 

Chairman CHAFFETZ. Ms. Neuman, you mentioned the budget 

detail worksheet that would be released in June of this year, which 

will be any time. Do you have that yet, and if so, can you provide 

it to this committee? 

Ms. NEUMAN. I do not have that yet. 

Chairman CHAFFETZ. Sorry, you’ve got to be a little closer to the 

mic there. Go ahead. 

Ms. NEUMAN. I’m sorry. I am not aware that it has been completed yet. I will check with my Deputy Chief FOIA Officer, and 

if it has, I will be happy to certainly provide it to you. 

Chairman CHAFFETZ. When it is complete, and you didn’t represent that it was complete, but when it is complete, can you please 

share that with this committee? 

Ms. NEUMAN. Absolutely. 

Chairman CHAFFETZ. One of the questions we have is about the 

charges that are given to the public and the expenses that they 

have. 

Let me start with you. Let me go back to Ms. Howard here. Oftentimes people are frustrated because the law says you need to respond within 20 days. You can give another 10-day extension. But 

then oftentimes it’s months before they hear again. How do you 

pick those dates? 

Ms. HOWARD. I think mainly they are just an approximation of 

when we think the document production will be done. Certainly in 

the case of the (c)(4) issues or the (c)(4) cases we had just no idea 

of the volume of documents that would be required and how long 

it would actually take for the responses to Congress and the investigators to be completed. 

Chairman CHAFFETZ. So when you do the search, do you send a 

request out to anybody you think might have it and you count on 

them to individually do it? You’re not able to—— 

Ms. HOWARD. Yes. 


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Chairman CHAFFETZ. There is not a FOIA officer that can get in 

there and do a search term, pull up every relevant email or document? 

Ms. HOWARD. No, because there is no library. There is no massive—— 

Chairman CHAFFETZ. Well, there is, there is. This is a fallacy. 

It’s wrong to say there is no library. It’s called email. And the reason we moved away from carbon copies and big warehouses with 

stacks and volumes of file folders is because electronically you can 

push a button, do a search, and generate that. This is the year 

2015 here. We are not in the stone ages trying to knock something 

out and copy it on a stone. So don’t tell me there is not a database. 

It’s called email, and it’s called Microsoft. They’re a big company. 

Ms. HOWARD. It’s folder by folder by folder by folder, account by 

account by account by account. 

Chairman CHAFFETZ. And it’s magic. You get a 28-year-old IT 

person in there and they can find that in a couple hours. And that’s 

why we don’t believe you. This is why we don’t believe. Don’t say 

there’s not a database. It’s called email. Right? 

Ms. HOWARD. My understanding is that the capabilities of the 

system we have do not enable us to do that except account by account by account. 

Chairman CHAFFETZ. And I just fundamentally and totally do not 

understand that. 

And I don’t understand how you all pick dates. Can you please 

try to explain—we don’t have time, because, I mean, it would take 

you 10 minutes each to try to explain this. 

The frustration for so many people is they don’t get exposure, 

they don’t know when. And sometimes they last months and years. 

Sometimes it’s very legitimate. They need some exposure to that, 

but there seems to be this great deal of mystery as to why you say, 

well, it’ll be July, and then July comes, the next thing you know 

it’s October. It just seems like a slow walk. So can you help explain 

to us why and how you pick the dates? 

I also would appreciate from Homeland Security if they could 

help us understand the new rulemaking that they’re involved with, 

with FOIA. The FOIA law is the law, so why do you have to develop new rulemaking, and what in the world is that going to look 

like? 

Ms. NEUMAN. Are you asking me a question? 

Chairman CHAFFETZ. Yeah. 

Ms. NEUMAN. So the GAO report recommended that we finalize 

our interim FOIA regulation which embodies FOIA policy and guidance at the Department. The rulemaking process is underway. We 

are preparing to issue it for public comment, after which we will 

review the comments very carefully and the rule will be finalized. 

Chairman CHAFFETZ. We will be watching that, because if Homeland Security thinks that they are going to come up with a whole 

nother new set of rules that’s different, this is again one of the 

frustrations. FOIA is what FOIA is, but every time you go to a different department and agency they got a whole set of standards. 

They got different rules. They don’t have standards where you just 

plug and play and operate equally, and that’s a frustration. 


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Ms. NEUMAN. And the rule is really an implementing regulation. 

It is not intended, nor do I believe—— 

Chairman CHAFFETZ. We are fascinated to see it. 

The other thing I am terribly frustrated at is we talked about the 

scorecard. And I believe this is put out by the Department of Justice, right, you come in and do this evaluation. And there is a colorcoded scheme here, and it is different categories of presumption of 

openness, effective system in place for responding, proactive disclosure, improved timeliness, and backlog reduction. 

Ms. NEUMAN. Right. 

Chairman CHAFFETZ. And if you sat and listened to the sum testimony of today and compare it to yesterday, I mean, we had as 

wide array of people as you can possibly have, from individuals, to 

the New York Times, to the ACLU, to a former CBS News reporter, 

to Vice. I mean, we got as wide of a swath of people as we possibly 

could, and there wasn’t anybody that believed that in general 

things were going well. And yet when you do your own scorecard, 

for instance at the Department of Justice, you’re solid green. You 

gave yourself 5 out of 5 on presumption of openness, 5 out of 5 in 

an effective system in place for responding. 

Proactive disclosure, are you kidding me? The Department of 

Justice gives themselves a 5 out of 5 on proactive disclosure? Do 

you think anybody in the world believes the Department of Justice 

is the most, they are at the top of their game, they got an A-plus, 

5 for 5, do you really believe that. 

Ms. PUSTAY. I do. I absolutely do. 

Chairman CHAFFETZ. Man, you live in la la land. That’s the problem. 

Ms. PUSTAY. I live in the real world, Congressman. 

Chairman CHAFFETZ. You live in fantasy land, because it ain’t 

working. 

You’re a very nice person, and I’m sure most of the people are 

very nice people. It ain’t working. Five hundred and fifty thousand 

times Americans put forward a request and got a rejection saying 

doesn’t qualify. Do you think that’s working? Is that a presumption 

of openness? Do you think that’s proactive disclosure? I beg to differ. I think it is absolutely fundamentally wrong. We are at the 

heart of why I think there is a problem, because you all think 

you’re doing a great job. 

Ms. PUSTAY. Right. We are constantly evaluating, not just how 

we do at DOJ—— 

Chairman CHAFFETZ. And your evaluation says you have no room 

for improvement. 

Ms. PUSTAY. That’s not true at all. 

Chairman CHAFFETZ. Then why do you give yourself 5 out of 5? 

Ms. PUSTAY. You aren’t looking at the whole of all the different 

categories. 

Chairman CHAFFETZ. Yes, I am. I will go through each and every 

one of them. I just read the different disclosures, and here it is in 

green, all green. 

Ms. PUSTAY. We have green for proactive disclosures. Proactive 

disclosures are making available to the public information—— 

Chairman CHAFFETZ. Presumption of openness 

Ms. PUSTAY. Exactly. 


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Chairman CHAFFETZ. Effective system in place for responding. 

Ms. PUSTAY. Responding to requests. 

Chairman CHAFFETZ. Really, you have got an effective system 

for—we can argue about this. I beg to differ. We had 11, 12 people 

yesterday that absolutely differ. On a bipartisan way, I don’t think 

there is anybody that would agree with you. Across the board most 

every one of you got great scores, and I just don’t buy that. 

I want to ask specifically about the Department of Justice. Are 

you able to conduct an electronic search or do you rely on the individual agency employees to proactively give you the information? 

Ms. PUSTAY. What you are talking about, I think, is a really important improvement to FOIA administration, and we do have 

within OIP the tools that are more sophisticated tools that are used 

in the e-discovery context which allow individual email accounts to 

be dumped or to be collected into one bucket. 

Chairman CHAFFETZ. So you searched the universal index, is 

that right? 

Ms. PUSTAY. Well, I don’t think it’s called a universal index, but 

we have tools that allow us—— 

Chairman CHAFFETZ. The UNI? 

Ms. PUSTAY. We have tools that allow us to search multiple 

email custodians simultaneously. 

Chairman CHAFFETZ. Do you search the electronic case files? 

Ms. PUSTAY. We do sometimes. We would only search case files 

if case files were relevant to a particular FOIA request. We have 

lots of different offices. 

What I want to emphasize is that technology is incredibly important to FOIA administration, and we have been at the forefront for 

pushing for use of more sophisticated technology to process and 

handle FOIA requests. We did a pilot at DOJ several years ago to 

show the benefits of being able to do things like searching multiple 

custodians at the same time. 

Chairman CHAFFETZ. So my understanding is that the FBI does 

conduct searches on the universal index, but that that system does 

not allow for text-based searches. But the FBI does not search the 

electronic case files which contain uploaded versions of the Bureau’s nonrestricted investigative records, and the ECF, as it’s 

called, the electronic case file, is text-searchable. And that’s the disconnect. I don’t expect you on this spot to respond to that, but I 

do want you to get back to us on this specific point, if you would. 

Ms. PUSTAY. Sure. 

Chairman CHAFFETZ. Okay. I have a few more questions. I want 

you to kind of each go down the line here. We went through with 

Ms. Howard here, but let’s go back to Ms. Barr. This is my last set 

of questions before I change my mind and ask another one. 

I want to know what is the instruction that you believe you have 

been given to interact with the White House? What percentage of 

the documents do you give to the White House or somebody who 

represents the White House? What is the expectation that you 

share information with them? Do you need their approval before 

you send it back out? How does that work? 

Because this directive is really concise, clear, short, three paragraphs. I mean, they essentially want you to give them everything. 

And so my question is, what do you have to do in order to fulfill 


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the demand from the White House that you give them everything 

before you give it to us or to the media or to the judicial branch? 

Ms. BARR. Well, we have a standard process that we follow for 

FOIA, and it does include, if the White House has an equity in a 

document that we are working on, we do consult with them as appropriate. But we follow the standard FOIA process. 

Chairman CHAFFETZ. How do you determine if it’s a White House 

equity? I mean, what is not an equity? 

Ms. BARR. When we get a request in we have a team of reviewers, and many of these reviewers, because so much of our work 

deals with things overseas, for the most part they are retired foreign service officers, and some of them are even foreign ambassadors. In fact, we have quite a few. 

They look at it. We decide where we need to search for documents. And then once we get the results of that document search 

back, then we go through line by line. And at that point we look 

at whether or not we need to coordinate with other agencies. And 

that would be when we would include the White House, if after 

they get these materials back they decide that they have an interest in that document. 

Chairman CHAFFETZ. And who at the White House do you send 

them to? 

Ms. BARR. I’m not familiar with who exactly, but I can take that 

back. 

Chairman CHAFFETZ. If you could let us know, we’d appreciate 

it. 

Chairman CHAFFETZ. Ms. Pustay? 

Ms. PUSTAY. What I can tell you is that the process of consulting 

with other agencies, which includes the White House, has not 

changed. This memo reflects the same practice that we have had 

administration to administration. I have been doing this a long 

time. And the word equity is really just sort of a more modern 

term. But what is captured by the memo and what has been consistent from administration to administration is that when an 

agency finds communications that originated with another entity or 

that reflect a communication with the other entity, that’s when an 

agency as a matter of good practice consults with that other entity 

to get their views on the sensitivity of the material. And oftentimes 

that can include, of course, getting their views that it’s okay to release the material. So it’s communications is what happens, the 

memo. 

Chairman CHAFFETZ. I think it’s a big source of why it’s so 

slowed down. So what percentage of the information do you have 

to share with the White House before you share it with us? 

Ms. PUSTAY. I can speak obviously just to FOIA requests. I don’t 

know the percentage of requests that have the equity of any particular—— 

Chairman CHAFFETZ. Okay. 

Ms. Neuman. 

Ms. NEUMAN. Yes. It is my understanding that with respect to 

the White House, this happens very infrequently. 

Chairman CHAFFETZ. Happens what? 

Ms. NEUMAN. Very infrequently. 


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Chairman CHAFFETZ. Why? I mean, the memo says it should 

happen on everything. 

Ms. NEUMAN. Well, again, it is my understanding, and I don’t 

process these requests or get involved in these kinds of consultations, but my understanding is that the kinds of requests we get 

don’t involve, quote, White House equities. And, of course, when 

the request comes in, if there is an indication that it is a request 

for White House records or White House information, that would 

trigger the consultation. 

Chairman CHAFFETZ. Well, no, it doesn’t. I’m not talking about 

White House. I’m saying if you have information in your possession 

at Homeland and it comes from a Member of Congress, the judicial 

branch, it was a FOIA request, a GAO request, that it should be 

shared with the White House. You are telling me you don’t do that? 

Ms. NEUMAN. No, no. I am saying that we do, we follow DOJissued guidelines that require consultation not only with the White 

House—— 

Chairman CHAFFETZ. Well, what about the White House- issued 

guidelines, because I am reading to you the guidelines. We handed 

you a copy of them. This is the guidelines. You don’t abide by it, 

or you do abide by it? 

Ms. NEUMAN. And we adhere to this memo in accordance with 

the DOJ guidance on that. We also report all such consultations 

publicly in our FOIA reports. So you asked a question about whether these consultations slow down or create additional delay in the 

process? I have implemented some procedures to try to minimize 

that delay or a delay associated with any consultations, including 

directing a senior professional member of my FOIA team to be the 

point of contact for those consultations. 

Chairman CHAFFETZ. And they communicate with who at the 

White House? 

Ms. NEUMAN. I would have to ask them. 

Chairman CHAFFETZ. We’re not getting much. We’ll try Mr. 

Fontenot. 

Mr. FONTENOT. Thank you. Again, I do not process specific FOIA 

requests, but Treasury follows the Department of Justice guidance 

from 2011 concerning FOIA referrals and consultations. We consult 

with agencies and entities concerning documents that originated at 

those agencies or in communication with those agencies. 

And obviously in this respect Treasury may consult with staff 

from the Executive Office of the President or the White House 

when those documents either originate or relate to the White 

House. Again, we treat the White House just like any other agency 

related to FOIA. 

Chairman CHAFFETZ. You were on a roll. I was believing everything you said until you said that last sentence. You’re nuts if you 

think you’re treating the White House exactly the same you treat 

the Bureau of Indian Affairs. There’s no way that’s happening. 

So with all due respect, we’re trying to get our hands and a grip 

on it. We would like some feedback on this. 

Chairman CHAFFETZ. I think the directive from the White House 

is crystal clear, and we will continue to pursue that. 

I am well over time. I will now recognize the gentleman from 

Maryland, Mr. Cummings, the ranking member. 


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Mr. CUMMINGS. Thank you very much. 

I think a lot of times I sit in these hearings and I try to figure 

out where we’re going. You all have to help me help you. I said to 

you a little bit earlier, Ms. Neuman, I wanted you all to get back 

to me with information as to—all of you—as to things that we 

could do to make things better. It’s kind of hard to do that when 

you think you’re almost perfect, though. I’m serious. 

Did you all watch the testimony, did any of you all watch the testimony yesterday? Any of you? Hello? Anybody? 

All right, I’ll go to Ms. Barr. Did you watch any of the testimony 

yesterday? 

Ms. BARR. I just heard some of it, but I wanted to focus on preparing for today. 

Mr. CUMMINGS. No problem. 

Did you. 

Ms. PUSTAY. Right. As I mentioned, I was updated throughout 

the day on the testimony. 

Ms. NEUMAN. As was I while I was preparing for the hearing. 

Mr. FONTENOT. I watched part of the hearing. 

Ms. HOWARD. I watched most of it. 

Mr. CUMMINGS. All right. Fine. And when you hear the testimony 

that you all gave today compared to what we heard yesterday, it 

seems like a world of difference. And let me tell you what I think 

is part of the problem. 

I do think a personnel issue is part of the problem. I mean, logic 

tells you that when you’ve got less people and you’ve got more demand, you’re going to have problems. I mean, period. I also think 

that there are a lot of things that you all are doing right. I mean, 

doing a great job at. And then I think there are some cases that 

are maybe a little bit more complicated, a little more controversial, 

and so the process is slowed down a little bit, and in some instances perhaps a lot. 

I mean, just listening to everything that has been said between 

yesterday and today, that’s where I come down on this. And some 

kind of way we got to get past where we are because I think we 

could do better. It’s easy to say that we are scoring excellent in this 

dot, dot, dot, dot that ain’t true, folks. It’s not. 

So some kind of way we’ve got to close this gap. And the only 

way we’re going to do it is that we have to be frank with each other 

and we’ve got to begin to set some kind of, I want to say goals, but 

the things, whatever you’re going to send us back are things that 

you should be doing that could be better, and set some deadlines 

with regard to making those things happen. Other than that, it’s 

going to get worse. I’m telling you, it’s going to get worse. 

So I’m hoping that you all will do that. I have discovered from 

being on this Hill for 20 years now almost that you almost have 

to—we have to set deadlines to get things done. And I’ve also noticed that a lot of times people who come before us, they have a 

tendency sometimes to outwait us. In other words, they know that 

the Congress is going to change. They know that we’re going to 

move on to something else. And then the next thing you know, 

things don’t get done, and then they look towards the new Congress, and then it’s worse, and then we just go through these cirVerDate Sep 11 2014 14:05 Jan 04, 2017 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6633 F:\22472.TXT APRIL

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cles over and over again. You have to have been here for a while 

to see this cycle, and I’ve seen it. 

So going to you, Ms. Barr, I want to just ask a few questions, 

because I want to clear up this thing. I mean, we’re making a big 

deal with regard to Secretary Clinton. My colleague, the gentleman 

from South Carolina, Mr. Gowdy, who I have a tremendous amount 

of respect for, suggested that we should not take Secretary Clinton’s word for the fact that she has produced all her emails relating 

to official business. He also suggested that Secretary Clinton’s lawyers do not have any duty to ensure compliance with the Federal 

records laws. 

But, Ms. Barr, let’s look at former Secretary Rice. Last fall the 

State Department asked her, along with other secretaries, for information about official emails on their personal accounts. Is that 

right? 

Ms. BARR. Yes, sir. 

Mr. CUMMINGS. And former Secretary Rice did not respond to the 

Department herself in response to your letter last fall. She had a 

representative do that. That’s what it says in the State Department’s report sent to the National Archives on this issue. Do you 

know who Secretary Rice’s representative is? 

Ms. BARR. No, not offhand, sir, but I can find out. 

Mr. CUMMINGS. Do you know whether it’s an attorney? 

Ms. BARR. I assume so, yes. 

Mr. CUMMINGS. Okay. According to the report the Department 

sent to the archives, former Secretary Rice’s representatives 

claimed that she did not use her personal email account for official 

business. Do you know what his assertion was based on? Do you 

have any idea? 

Ms. BARR. Personally, just what was told to us. I don’t have personal knowledge of what was said. 

Mr. CUMMINGS. Okay. And so you don’t know whether she told 

him that or he reviewed the documents? You don’t know? 

Ms. BARR. That is true. 

Mr. CUMMINGS. Did you know if he thoroughly reviewed her personal email account to find emails relating to official business or 

did he just take her word? You don’t know. Is that your testimony? 

Ms. BARR. Yes. 

Mr. CUMMINGS. So let me just state for the record that when dozens of White House officials under the Bush administration were 

using private email accounts at the RNC, we worked with their attorneys to ensure that they were recovering official emails and producing them. We did not suggest subpoenaing their servers. We relied on them to go through their documents, identify documents responsive to our requests, and produce them to us. Attorneys do 

have a legal obligation to provide us with truthful information, and 

this is the same process we use for virtually every investigation we 

conduct. 

Ms. Howard, I take it that you’re getting ready to retire. Is that 

what you’ve been trying tell us? You’re not on your way out the 

door today, are you? 

Ms. HOWARD. Not today, no. 

Mr. CUMMINGS. How soon will you be gone? 

Ms. HOWARD. I don’t now. I think about that all the time. 


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Mr. CUMMINGS. Take your time. 

Ms. HOWARD. Like many people in IRS, I am eligible to retire. 

And what keeps me working is the dedication of my employees and 

the professionalism of my colleagues at IRS. 

Mr. CUMMINGS. Well, we appreciate all of you and the employees 

that work with you. 

What can we do to improve the system? 

And then I will be finished, Mr. Chairman. This is where I want 

to wrap up. 

Ms. HOWARD. From our standpoint, we would like advanced technology I think just to make it easier to do the searches. We would 

also like at IRS, we would like access to a really good FOIA system 

that would help us be more consistent and accurate with our 

redactions so that we could get more done with the same amount 

of people. 

The other thing that my folks do in Disclosure, other than just 

the FOIAs, is they are responsible for doing 6103 redactions for 

subpoenaed information around litigation, and also for just making 

sure that the employees across IRS who have interaction with taxpayers know the disclosure laws and have their questions about 

disclosure answered as they need them on a day-to-day basis. 

So we have those responsibilities too. And I think the technology 

would go a long way. We would like additional staff. I think that 

what we see is a trend in the complexity of requests. So instead 

of requests being for mostly taxpayers asking for their own files, 

we’re seeing more and more of the types of requests that you had 

witnesses speaking about yesterday that are very expansive in 

their scope and nature and rely on us going to multiple custodians 

to find and retrieve those records and then volumes and volumes 

of pages. 

So we need people. We need people who are trained well in the 

exemptions. And we need technology to help us with all of that. 

Mr. CUMMINGS. Mr. Fontenot? 

Mr. FONTENOT. Again thank you. I mean, I can obviously tell you 

what we have done. The Department, we’ve added resources, we’ve 

added people, we’ve added—— 

Mr. CUMMINGS. What about training? 

Mr. FONTENOT. We’ve added better data, and we’ve train 100 

percent of our FOIA professionals at the Department, and I think 

that is yielding results. Again, we received about 14,000 requests 

overall last year, and we closed about 14,000 as well. Again, an improvement year over year. 

Mr. CUMMINGS. Would you say that maybe, based upon what you 

just said—— 

Mr. FONTENOT. Yes, sir. 

Mr. CUMMINGS. —you have a situation of best practices there? 

Mr. FONTENOT. Again, we’re always looking for best practices. 

We try to adopt as many best practices as we can from the Department of Justice. Our team works with them quite a bit. Again, I 

think we’re moving in the right direction, but obviously we can always improve? 

Mr. CUMMINGS. Ms. Neuman? 

Ms. NEUMAN. Yes, Congressman Cummings. I really appreciate 

the question, and I have been giving it quite a bit of thought. In 


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my case, in the case of my agency, it’s somewhat difficult to say 

right now because we are in the midst of this independent review 

that I have commissioned. 

I think it’s really important that I personally understand what 

the actual systemic challenges are that are facing my agency so 

that not only we can understand how to address those, but so that 

we can communicate back with you about what it is we actually 

need, because it may be tempting to turn to what might seem like 

an obvious solution today, but that solution may not actually address what the actual problems are. 

I do think that FOIA as a 40-plus-year-old statute may not have 

contemplated the kind of technology that’s available not only to 

seek information, but to respond to those requests, and to that extent I think it’s worthwhile considering how the statute might be 

updated. And otherwise, I think it’s a very good question, and I’m 

interested in polling my FOIA unit along with that and the outcome of this review. I would be delighted to get back to you with 

my thoughts. 

Mr. CUMMINGS. I’m hoping that you all will get back to me within 30 days. Would you all do that, please? 

Ms. PUSTAY. Certainly. 

Mr. CUMMINGS. All right, go ahead. 

Ms. PUSTAY. I think the number one thing from our perspective 

is that we really appreciate and need the support of Congress for 

adequate resources for FOIA. That will help us both with personnel 

and with IT. They’re both inextricably intertwined. 

Mr. CUMMINGS. And training. 

Ms. PUSTAY. And training as well, although we feel as though 

we’ve done very well with training with the resources we’ve just 

made available. We’ve been encouraging agencies to do training. 

We’re now asking agencies and getting a very good response that 

agencies are giving their employees substantive FOIA training, and 

we ourselves provide training to thousands of personnel every year. 

So training I think we have handled, I think in the sense that 

we can do that now, and we’re continuing to focus on that. 

Mr. CUMMINGS. Ms. Barr? 

Ms. BARR. Technology to help us quickly go through the various. 

We have information all over the world with different systems. 

That would be helpful. And, of course, people. And at the same 

time, since we do have an inspector general taking a look at our 

processes, we also hope to get something from that as well. 

But it’s a very serious problem, but for us it’s also a complicated 

problem, just trying to get all of the information in the right place 

quickly so that we can be responsive. 

Mr. CUMMINGS. I want to thank you all of you very much, and 

we look forward to hearing from you and working with you. 

I yield back. 

Chairman CHAFFETZ. Thank you. 

I thank you all to be here. I just want to make a comment on 

the IT part of the equation. 

One of the frustrations is, if you look at the amount of money 

that we pour into IT at the IRS, it’s roughly $2 billion per year, 

$2 billion. Now, you have 90,000 employees, right? It’s unfair to 

just divide that number and calculate out some $20,000-plus per 


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person. But it’s an extraordinary amount of money. And my guess 

is, if we went to almost any corporation, private sector, and said, 

‘‘Year over year we’re going to keep giving you billions of dollars 

for your IT,’’ and then to have such a dilapidated system, I mean, 

we just don’t understand that. 

It’s not as if we’re not pouring resources into IT budgets. You 

have billions of dollars at your disposal. And every time I turn 

around I hear across agencies how bad it works. And I’m doing this 

off the top of my head, but it’s something like $75-plus billion a 

year—billion—is spent on IT in the United States with our government, and it doesn’t work. And then we get data breaches. I mean, 

we didn’t even get into the data breaches that are happening at the 

IRS. 

So we have got to get a grip on what is important, what is working, what is not working. And if you think that there is a database 

out there that can’t be searched because Microsoft wasn’t smart 

enough to think about that, we’ve got big, big problems. 

So I want to make sure that you and your staff know how much 

we do appreciate. It’s a huge volume. It is supply and demand, and 

the demand has been greatly increasing, and that puts a lot of 

pressure on a lot of people. And I’m a huge believer that the overwhelming majority of our Federal workers, they work hard, they 

work smart, they are trying to do the right thing. We’re trying to 

do the right thing too. 

So while these hearings are sometimes tough and pointed and direct, that’s what they’re supposed to do. That’s our Constitution in 

motion. We are supposed to be self-critical. That’s what we do. 

That’s how we get better. And we can’t just put a smiley face on 

everything and say, oh, it’s all good. 

We want to help solve those problems. We’re not only the Oversight Committee, but we’re also supposed to be Government Reform, and there will be a FOIA reform bill. We passed one out of 

the committee. I want to take another breath and do several panels 

and get your perspective, the media, the outside groups, so that we 

get that thing just right. You don’t get but once every couple decades the chance to reformulate something. 

So we’re going to look back at that bill. We’re going to see if we 

can’t tighten up a couple other things, maybe lessen the number 

of exemptions, I think is something that we have got to be able to 

look at, and then probably speed up some of the other parts of the 

process so that it makes your job smoother and easier. 

And you got all these charts and graphs and, hey, what can we 

release or not. Let’s do what President Obama said. Let’s err on the 

side of release it. Release it. And I don’t think your folks in your 

departments and your agencies have the freedom to do that. I 

think they are slowed down in what the New York Times called, 

their representative, this culture that says—and it has happened 

over a long period of time, not just one administration—a culture 

that doesn’t want to make a mistake and consequently doesn’t 

want to release it, and consequently we aren’t getting the American 

people what they paid for. 

We all work for them. You all work for them. And we’ve got to 

be more responsive. They’re telling us it’s not working. And so 


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we’ve got to change something, we can’t just keep doing the same 

thing. 

So I think it has been a productive 2 days of hearings. Still lots 

more to learn. We look forward to the interaction with you. I thank 

you for your time and your patriotism and your dedication to the 

country and your government, and we thank you. And this committee stands adjourned. 

[Whereupon, at 12:17 p.m., the committee was adjourned.] 


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APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD


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Questions for the Record Submitted to 

Assistant Secretary Joyce Barr by 

Representative Elijah Cummings 

Committee on Oversight and Government Reform 

June 3, 2015 

Relating to Former Secretary of State Colin Powell 

Question: 

1. Please provide any official, unclassified email address used by former 

Secretary of State Colin Powell during his tenure as Secretary of State. 

Answer: 

The Department currently is awaiting the findings of the Office ofinspeetor 

General's review ofthe email practices of four former Secretaries of State. At 

this time, the Department understands that former Secretary of State Colin 

Powell did not use any official, unclassified email address during his tenure as 

Secretary of State. 
95 


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Question: 

2. Please provide any personal email address used by former Secretary 

Powell for official business during his tenure as Secretary of State. 

Answer: 

The Department currently is awaiting the findings of the Office of 

Inspector General's review of the email practices of four former Secretaries 

of State. At this time, the Department is aware that Former Secretary Powell 

used the following personal email address during his tenure as Secretary of 

State: LPowell86lr{ilaol.com. Please note that public dissemination of this 

information could negatively impact the privacy of former Secretary Powell. 

Accordingly, the Department requests that the address be redacted from this 

response prior to public release. 
96 


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Question: 

3. Please provide the total number of emails provided by the Department 

to FOIA requesters that were sent to or from former Secretary Powell 

from an official, unclassified account or a personal account relating to 

official business. 

Answer: 

There is no record available of the Department providing emails sent to or 

from former Secretary Powell in response to any FOIA request. The Department 

currently is awaiting the findings of the OHice ofTnspector General's review of the 

email practices of four former Secretaries of State. 
97 


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Question: 

4. Please provide the total number of emails provided by the Department 

to congressional requesters that were sent to or from former Secretary 

Powell from an official, unclassified account or a personal account 

relating to official business. 

Answer: 

There is no record available of the Department providing emails sent to or 

from former Secretary Powell in response to any congressional request. The 

Department currently is awaiting the findings of the Office oflnspector General's 

review· of the email practices of four former Secretaries of State. We are happy to 

continue to work with your staff on providing the information you need related to 

this matter. 
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Question: 

5. Please provide the identity of former Secretary Powell's representative 

who responded to the Department's letter requesting information about 

the use of personal email for official business, and any documents 

provided by this representative. 

Answer: 

Former Secretary Colin Powell's Principal Assistant, Peggy Cifrino, 

responded on his behalf in March 2015 to the Department of State's letter. 
99 


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Question: 

6. Please provide a detailed description of the steps taken by the 

Department to follow-up with former Secretary Powell after the 

Department learned about his use of a personal email account for 

official business, including whether the Department or former Secretary 

Powell contacted his Internet Service Provider to determine whether 

any emails relating to official business could be recovered. 

Answer: 

On March 9, 2015, Ms. Cifrino advised the Department, with respect to 

official cmails sent on Secretary Powell's private account during his time in 

office, that "[w ]e have no such emails in our possession. He did not retain 

those cmails nor make printed copies.'' She previously advised that while 

Secretary Powell "used a personal email account during his tenure as 

Secretary of State ... ft]he account he used has been closed for a number of 

years." 

The Department's Office of the Inspector General (OIG) is conducting a 

review of the use of personal communications hardware and software by the 

current Secretary of State as well as the four former Secretaries of State, 

including former Secretary Powell. The Department believes that the OIG 

has reached out to former Secretary Powell in connection with this review. 

Furthermore, the Department understands the OIG has identified at least two 
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emails in Department archives involving Secretary Powell's AOL.com 

address. 

On October 21, 2015, the Department sent a letter to Secretary Powell's 

principal assistant encouraging them to check with the internet service or 

email provider for Secretary Powell's former account to sec if it is still 

possible to retrieve any official cmails from his tenure at the Department. 
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Question: 

7. Please provide copies of all em ails that were sent to and from Former 

Secretary Powell from an official, unclassified or personal account 

related to official business. 

Answer: 

The Department currently is awaiting the findings of the Office oflnspector 

General's review of the email practices of four former Secretaries of State. The 

Department does not have a collection of em ails sent to or from Secretary Powell 

from which to produce records to the Committee. However, the Department 

understands the OIG has identified at least two emails in Department archives 

involving Secretary Powell's AOL.com address. We arc working with staff to 

provide access to copies of these emails. We are happy to continue to work with 

your staff on providing the information you need related to this matter. 
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Relating to Former Secretary of State Condoleezza Rice 

Question: 

1. Please provide any official, unclassified email address used by former 

Secretary of State Condoleezza Rice during her tenure as Secretary of 

State. 

Answer: 

The Department currently is awaiting the findings of the Office ofinspector 

General's review of the email practices of four fom1er Secretaries of State. At this 

time, the Department understands that Former Secretary of State Condoleezza Rice 

did not use any official, unclassified email address during her tenure as Secretary 

of State. 
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Question: 

2. Please provide any personal email address used by former Secretary 

Rice for official business during her tenure as Secretary of State. 

Answer: 

The Department currently is awaiting the findings of the Office ofinspector 

General's review of the email practices of four former Secretaries of State. At this 

time, the Department has no record of any personal email address used by former 

Secretary Rice for official business during her tenure as Secretary of State. 
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Question: 

3. Please provide the total number of emails provided by the Department 

to FOIA requesters that were sent to or from former Secretary Rice 

from an official, unclassified account or a personal account relating to 

official business. 

Answer: 

The Department currently is awaiting the findings of the Office ofinspector 

General's review ofthe email practices of four former Secretaries of State. After 

the Department asked the four former Secretaries for their emails, Secretary Rice 

indicated that she did not use a personal account for business. She indicated she 

had a state.gov email account that she said she used sparingly. There is no record 

available of the Department providing emails sent to or from former Secretary Rice 

in response to any FOIA request. However, a review of the FOIA electronic 

reading room at www.I:Oia.statc.gov shows two letters from Secretary Rice and a 

list of her travel; there are also six letters addressed to Secretary Rice. 
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Question: 

4. Please provide the total number of emails provided by the Department 

to congressional requesters that were sent to or from former Secretary 

Rice from an official, unclassified account or a personal account 

relating to official business. 

Answer: 

There is no record available of the Department providing cmails sent to or 

from former Secretary Rice in response to any congressional request. The 

Department currently is awaiting the findings of the Office ofinspector General's 

review of the email practices of four former Secretaries of State. We are happy to 

continue to vvork with your staff on providing the information you need related to 

this matter. 
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Question: 

5. Please provide the identity of former Secretary Rice's representative 

who responded to the Department's letter requesting information about 

the use of personal email for official business, and any documents 

provided by this representative. 

Answer: 

Fonner Secretary Rice's representative, John Bellinger, advised the 

Department that she did not usc personal email for official business and docs 

not have any personal emails that constitute federal records. 
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Question: 

6. Please provide a detailed description of the steps taken by the 

Department to follow-up with former Secretary Rice after her 

representative asserted to the Department that former Secretary Rice 

did not use a personal email account for official business, including 

whether the Department asked former Secretary Rice's representative 

whether anyone conducted a comprehensive review of former Secretary 

Rice's personal account for emails relating to official business. 

Answer: 

After the Department asked the four former Secretaries for their cmails, 

Secretary Rice indicated that she did not use a personal account for business. 

The Department has not asked Secretary Rice to perform additional 

searches. The Department's Office of the Inspector General (OIG) is 

conducting a review of the usc of personal communications hardware and 

software by the current Secretary of State as well as the four former 

Secretaries of State, including former Secretary Rice. The Department 

believes that the OIG has reached out to former Secretary Rice in connection 

with this review. 
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Question: 

7. Please provide copies of all emails that were sent to and from Former 

Secretary Rice from an official, unclassified or personal account related 

to official business. 

Answer: 

The Department cunently is awaiting the findings of the Office ofinspector 

General's review of the email practices of four former Secretaries of State. The 

Department does not have a collection of em ails to or from Secretary Rice from 

which to produce records to the Committee. We are happy to continue to work 

with your staff on providing the information you need related to this matter. 
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Question: 

8. Please provide copies of all documents relating to the attached FOIA 

request submitted by Citizens for Responsibility and Ethics in 

Washington on November 20, 2007, seeking "representative copies of emails that have been sent by the Secretary of State from her U.S. 

government-issued e-mail account," as well as representative copies of 

"e-mail messages that have been sent by the Secretary of State from any 

private e-mail account and that pertain to official government business" 

for the time period dating from January 26, 2005 through the present. 

Answer: 

The Department is gathering records in response to this request and expects 

to get back to the Committee shortly. We are happy to continue to work with your 

staff on providing the information you need related to this matter. 
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Department of Justice 

Questions for the .Record 

"Ensuring Agency Compliance with the Freedom of Information Act (FOIA)" 

Committee on Oversight and Government Reform 

U.S. House of Representatives 

June 3, 2015 

Questions posed by Chairman .Jason Chaffctz 

Federal Bureau of Investigation Responses 

1. How many FBI databases does the Bm·eau use when conducting its daily work? 

Response: 

Numerous databases are used on a daily basis by the Federal Bureau of Investigation (FJ3I) 

employees to fultlll their responsibilities. These databases are created by FBI units or other 

entities to meet the ever-increasing demands of the Fl3l to assimilate infonnation for 

investigations and for situational awareness, strategic planning, and reporting. For example, FBI 

employees working countertenorism matters will have access to a variety of infonnalion 

databases they need to pursue tenorism investigations, including databases shared with other 

federal agencies. 

2. A1·e the databases text-searchable? 

Response; 

Whether a database is text searchable depends on the purposes and format of the various 

databases. 

3. Does the FBI search these databases when responding to FOIA requests'? Why or why 

not? 

Response: 

The FRI searches those databases where records responsive to the Freedom of lnf01111ation Act 

(FOIA) are reasonably likely to reside when responding to FOIA requesl~. The FBI's FOIA 

search methodology has been consistently upheld by numerous federal courts. 

4. Does the FBI search its case files when responding to FOIA requests'! 

Response: 

FBI case files are part of the Central Records System (CRS), which is an extensive system of 

records consisting of applicant, investigative, intelligence, perso1mel, administrative, and general 

files compiled and maintained by the FBI in the course of fultilling its integrated mission and 
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function as a law enforcement and national security agency. The CRS spans the entire FBI 

organization and encompasses the records of FBI HeadquaJiers (FBIHQ), FBI Field Offices, and 

FBI Legal Attache (Legat) Offices worldwide. The CRS is searched when responding to FOIA 

requests. 

The CRS consists of a numerical sequence of files, called FBI "classifications," which are 

organized according to designated subject categories. The broad anay of CRS file classification 

categories includes types of criminal, countetierrorism, counterintelligence, and cyber 

investigations; intelligence assessments; and personnel and administrative matters. The general 

indices to the CRS are the index or "key" to locating records within the enom1ous amount of 

information contained in the CRS. The CRS is indexed in a manner which meets the FBI's 

investigative needs and priorities, and allows FBI personnel to reasonably and adequately locate 

pe1iinent files in the performance of their law enforcement and national security duties. The 

general indices are arranged in alphabetical order and comprise an index on a variety of subject 

matters to include individuals, organizations, events, or other subjects of investigative interest 

that are indexed for future retrieval. FBI employees may index infonnation in the CRS by 

individual (persons), by organization (orgcmizational enti!ies, places, and things), and by event 

(e.g., a ten·orist attack or bank robbery). Indexing information in the CRS is based on 

operational necessity, and the FBI indexes that information considered relevant and necessary for 

fi.Jture retrieval. Accordingly, the FBI does not index every individual name or other subject 

matter in the general indices. 

Sentinel, and its precmsor Automated Case Support (ACS), are the main potials used to locate 

information within the vast CRS. On October 1, 1995, the FBI implemented ACS as an 

electronic, integrated case management system for FBIHQ and all FBI Field Offices and Legals. 

ACS had an operational puq10se and design to enable the f<BI to locate, retrieve, and maintain 

information in its files in the performance of its mission. Sentinel, the FBI's next generation 

case management system, became effective FBI-wide on July 1, 2012. Sentinel provides a webbased interface for FBI users, and it builds upon the automated applications that were utilized in 

ACS. Since July 1, 2012, FBI generated records have been created electronically in case files 

via Sentinel. 

5. Does the FBI search its Elertronic Case File when responding to FOIA requests? 

Response: 

The Electronic Case File (ECF) is the component of ACS which allowed text-based searches. 

The FBI used ECF when information wonld not reasonably be expected to be located in the CRS 

via an index search methodology and, therefore, a text-based search was wan-anted. Sentinel has 

a text based search capability which the FBI uses if the information would not reasonably be 

found using the Sentinel index search. 

2 
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6. Please provide a list of all databases searched when responding to FOIA requests. 

Response: 

Given its comprehensive nature and scope, the CRS is the principal records system searched by 

the FBI when responding to FOIA requests as the CRS is where the FBI indexes information 

about individuals, organizations, and other subjects of investigations for future retrieval. The 

CRS is the FBI system where records responsive to most requests would reasonably be found. If 

a request is such as to reasonably conclude records would reside outside oflhe CRS, then an 

additional search of the appropriate database or location will be conducted. The FBI's FOJA 

search methodology has been consistently upheld by numerous federal courts. 

Department of Justice Responses 

7. How does the Department of Justice evaluate whether au agency "reasonably foresees 

that disclosure would harm an interest protected by one of the statutory interests'"? 

The Department of Justice has taken many steps to ensure that agencies are properly applying the 

foreseeable harm standard outlined in the Departments 2009 FOIA Guidelines. After the FOIA 

Guidelines were issued in March 2009, the Department's Office of Infon11ation Policy (OIP) 

issued guidance to all agencies specifically addressing the foreseeable harm requirement. See 

DOJ, O!P Guidance: Prs:ciicJeJlLObam~·s FOJ.c\ l\!s:morandu!JL,rn_d_/~.\IQIDt:J: CJ.:n.eral!Iolder·~ 

L(l_Ll_ Guhlclines- CrcatiJ.1g a New_fJ1LQ[i~J.L(Iu\S:JJJillt:Jlt (2009). We also discuss the 

requirement in our and we have made it a regular part 

of the many FOIA programs OIP conducts each year. Through these efforts we are 

educating agencies about the standard. 

Moreover, each year OJP has asked agencies to include in their ChiefFOIA Onicer Reports 

information about whether they have made discretionm-y releases of information after applying 

the foreseeable harm standard. After reviewing the first set of agency Chief FOIA Officer 

Reports submitted in 2010, OIP found a strong correlation between those agencies that reviewed 

their documents with the foreseeable harm standard in mind and those agencies that were able to 

identify additional information that could be released as a matter of discretion. Accordingly, OIP 

issued guidance that each agency "should institute a system, or add a step in their processing 

procedures, to affirmatively consider whether more infom1ation can be released as a matter of 

administrative discretion." Agencies were then required to report in their ChicfFOIA Officer 

Reports on whether a distinct process or system had been put in place at their agency for 

reviewing records for discrelionm·y release. Additionally, since 2014, agencies that were not 

able to make discretionary releases during the reporting period have been required to explain 

·why. 

To provide greater transparency to this aspect of the 2009 FOIA Guidelines, for the past four 

years OIP has asked agencies to provide examples of discretionary releases made the previous 

year in their ChiefFOIA Otlicer R.epotts. Many of these releases consist ofinfom1ation that 

could have been protected by the deliberative process privilege of Exemption 5, but information 
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protected by other exemptions, such as Exemptions 2, 7(D), 7(E), and 8, has also been released 

as a matter of discretion. For example, as reported in the 2016 ChiefFO lA Officer Reports, 62% 

of Department of Defense components made discretionary releases, and in the vast majority of 

cases the infonnation released qualified for protection under Exemption 5 of the FOIA. The 

Department of Commerce released material discussing the preplanning of a risk assessment 

project for the 2020 Dece1mial, as well as draft documents, recommendations and opinions 

conceming a program to help improve patent quality. The FBI continues to release infonnation 

with historical value that could be protected by the FOIA's law enforcement exemptions, such as 

infonnation about counterintelligence operations and records of discussion about whether to 

prosecute Alger Hiss for espionage and pe1jury. 

The Department encourages the Committee to review agency Chief FOIA Officer Reports for 

2013,2014,2015, and 2016, which arc readily available on the Rt:J20.!~ page ofOIP's website, to 

get a complete picture of the many types of information released as a matter of discretion each 

year tmder the Department's 2009 FOIA Guidelines. 

8. How many times has DOJ refused to defend an agency's withholding of documents in 

cout·t since 2009? 

When the Depm1ment's FOIA Guidelines vvere issued in 2009, the Department's litigators 

immediately began applying their principles to their litigation cases. While the Department has 

not kept statistics on this point, there arc a number of examples where the agency made a 

discretionary release of additional information during the course of litigation that was originally 

withheld at the administrative level. For example, after issuance of the Dcpmiment's 2009 FOIA 

Guiddines, OTP conducted a systematic review of all its pending FOIA litigation cases to 

determine whether any information could be released as a matter of discretion. OIP detem1ined 

that releases conld be made in eight of those cases. Attached is a chart OIP compiled in response 

to a FOIA request on this topic that was prepared in late 2009 and that lists the eight litigation 

cases where supplemental releases were made after issuance of the 2009 FOIA Guidelines. 

There are also comi decisions that reference the fact that releases were made as a matter of 

discretion, see, e.g, Judicial Watch, Inc. v. DOJ, 878 F. Supp. 2d 225,233 (D.D.C. 2012) 

(referencing review that the Department had conducted in connection with the litigation and the 

decision to make discretionary releases as a result of that review); ACLU v. DHS, 810 F. Supp. 

2d 267,276 (D.D.C. 201 1) (noting that agencies had applied the Attomey General's Guidelines, 

which were issued dming the pendency of the case, and had released records as a result). 

Importantly, separate and apart from its impact on litigation, the foreseeable hann standard 

contained in the Department's 2009 FOIA Guidelines has had an ongoing impact on agency 

decision making at the administrative level, when agencies are making their initial 

determinations on FOIA retruesls. As discussed above, the Department of Justice has taken 

several steps since the issum1ce of the 2009 FOIA Guidelines to ensure that the foreseeable harm 

standard is being properly applied by agencies at the administrative level. 

4 
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I 

I 

Freedom of Information Act (FOIA) Litigation Cases Handled by the 

Office of Information Policy (OIP) Where Discretionary Releases of 

Previously Withheld Documents Were Made 

OIP has made supplemental releases in the following four cases: 

Case Name Defendant Agency 

l Electronic Frontier Foundation v. Office United States Trade Representative 

of the United States Trade 

Representative, Civil Action No. 08-

1599 (D.D.C.) 

2 Schoenman v. Federal Bureau of ' Federal Bureau ofinvestigation 

Investigation, et al., Civil Action No. 

04-2202 (D.D.C.) 

3 King v. Department of Justice, et al, Executive Office for United States 

Civil Action No. 08-1555 (D.D.C.) Attorneys 

4 Humane Society v. USDA, Civil Action Department of Agriculture 

No. 05-0197 (D.D.C.) 

OIP, on behalf of the Senior Management Offices of the Department of Justice, 

made supplemental releases of records in the following four litigation cases: 

Case Name Processing on Behalf of 

I Habeas Corpus Resource Center v. Office of the Attorney General, 

Department of Justice, Civil Action No. Office of the Deputy Attorney 

08-02649 (N.D. Cal.) General, Office of Legal Policy, 

Office of Legislative Affairs, Office 

of Intergovernmental and Public 

Liaison 

2 Electronic Frontier Foundation v. Office Office of the Attorney General, 

of the Director of National Intelligence, Office of Legal Policy, Office of 

Civil Action No. 08-01023 (N.D. Cal.) Legislative Affairs 

3 Citizens for Responsibility and Ethics in Office of the Associate Attorney 

Washington v. Department of Justice, General 

Civil Action No. 05-2078 (D.D.C.) 

4 Lardner v. United States Department of Office ofthe Deputy Attorney 

Justice, Civil Action No. 09·00784 General 

(D.D.C.)