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S. HRG. 111–529 

ADVANCING FREEDOM OF INFORMATION IN THE 

NEW ERA OF RESPONSIBILITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 30, 2009 

Serial No. J–111–50 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, John, a U.S. Senator from the State of Texas ........................................ 3 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 56 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 65 

WITNESSES 

Curley, Tom, President and Chief Executive Officer, The Associated Press, 

Representing the Sunshine in Government Initiative, New York, New York 14 

Fuchs, Meredith, General Counsel, The National Security Archive, Washington, DC ............................................................................................................. 16 

Nisbet, Miriam, Director, Office of Government Information Services, National Archives and Records Administration, College Park, Maryland ........... 6 

Perrelli, Thomas J., Associate Attorney General, U.S. Department of Justice, 

Washington, DC ................................................................................................... 4 

QUESTIONS AND ANSWERS 

Responses of Thomas J. Perrelli to questions submitted by Senator Leahy ...... 22 

SUBMISSIONS FOR THE RECORD 

Associated Press, Laurie Kellman, Washington, DC, article ............................... 24 

Burton, M. Faith, Acting Assistant Attorney General, Washington, DC, letter 

and attachment .................................................................................................... 26 

Curley, Tom, President and Chief Executive Officer, The Associated Press, 

Representing the Sunshine in Government Initiative, New York, New York, 

statement .............................................................................................................. 32 

Fuchs, Meredith, General Counsel, The National Security Archive, Washington, DC, statement .......................................................................................... 58 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, letter ......... 67 

Nisbet, Miriam, Director, Office of Government Information Services, National Archives and Records Administration, College Park, Maryland, statement ...................................................................................................................... 69 

OpenTheGovernment.org; Organizations and Individuals, Washington, DC, 

letter ...................................................................................................................... 71

Perrelli, Thomas J., Associate Attorney General, U.S. Department of Justice, 

Washington, DC, statement ................................................................................ 75 

(1) 

ADVANCING FREEDOM OF INFORMATION IN 

THE NEW ERA OF RESPONSIBILITY 

WEDNESDAY, SEPTEMBER 30, 2009 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Klobuchar, Franken, and 

Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I was just explaining to Senator Cornyn, who 

has been such a champion in this area, the reason why I am late. 

Over in the Russell Building, they were changing the Chair of the 

Senate Agriculture Committee. For the first time, there will be a 

woman as Chair of the Committee, Blanche Lincoln of Arkansas, 

and the first time an Arkansan will be Chair. But it is a Committee which thrives on bipartisanship, and all the former Chairs 

of that Committee who are currently serving in the Senate were 

there—that is, Senator Saxby Chambliss of Georgia, Senator Dick 

Lugar of Indiana, Senator Thad Cochran of Mississippi, all Republicans; and Senator Tom Harkin and myself, Tom Harkin of Iowa 

and myself. So we had six people there, one Chair, five former 

Chairs, and we have all—to show you how the majority goes back 

and forth here, all five of us have been former Chairs and former 

Ranking Minority members. So it is one of those things that they 

keep track of. I suspect it is somewhat of an oddity in the Senate 

and somewhat historical. 

But more importantly for this Committee, we are holding an important oversight hearing on the Freedom of Information Act, or 

‘‘FOIA,’’ as we all know it. FOIA was enacted 42 years ago. It was 

enacted 7 years before I came to the Senate. It was a watershed 

moment in our Nation’s history because it guarantees the right of 

all Americans to obtain information from their Government and to 

know what their Government is doing. Remember, it is our Government, all of us. 

In his historic Presidential memorandum on FOIA, President 

Obama said that ‘‘[i]n our democracy, the Freedom of Information 

Act, which encourages accountability through transparency, is the 

most prominent expression of a profound national commitment to 

ensuring an open Government. At the heart of that commitment is 

2 

the idea that accountability is in the interest of the Government 

and the citizenry alike.’’ 

I know from the start of his transition to the White House, I 

urged him to make a clear commitment to FOIA, and I told him 

I was very pleased that one of his first official acts was to issue 

the new directive to strengthen FOIA. But I would also note that 

he supported every time Senator Cornyn and I made moves to 

strengthen FOIA, he as a Senator had backed that. 

FOIA is an indispensable tool in protecting the people’s right to 

know. It is a cornerstone of our democracy. If you do not have it, 

you are kept in the dark about key policy decisions. The Government will always tell us look at the great thing we did right. FOIA 

kind of helps find out those things we do not want to talk about 

that we did wrong. And without open Government, you cannot 

make informed choices at the ballot box. Without access to public 

documents and a vibrant free press using those, officials can make 

decisions in the shadows, often in collusion with special interests, 

escaping accountability for their actions. And once eroded, the right 

to know is hard to win back. 

It is essential that we honor the President’s promise to restore 

more openness and accountability to Government. I have called on 

the Justice Department to conduct a comprehensive review of its 

pending FOIA cases so that information sought under FOIA is not 

improperly withheld from the public. In March, the Attorney General issued new FOIA guidance that restores the presumption of 

disclosure for Government information. I welcome that new policy, 

and I am pleased that the Associate Attorney General is here to 

discuss how the FOIA guidelines are being implemented. Mr. 

Perrelli, I am delighted you are here. 

We have made good progress toward strengthening FOIA in Congress. Earlier this year, the Congress enacted an omnibus spending 

bill that includes critical funding to finally establish the Office of 

Government Information Services at the National Archives and 

Records Administration as part of the OPEN Government Act, 

which Senator Cornyn and I wrote. 

Incidentally, speaking of that, both of us realize the temptation 

to withhold things can afflict both Democratic and Republican administrations. We were trying to write this so no matter who is 

President, no matter which party is in control, that the temptation 

can be resisted because FOIA is strong. And so we are going to— 

there is a lot more I will put in the record. I would note that I have 

worked with Senator Feinstein, the Chair of the Select Committee 

on Intelligence, to remove an unnecessary FOIA exemption from 

the intelligence reauthorization bill. Senator Cornyn and I have 

also reintroduced the OPEN FOIA Act. 

I want to yield to Senator Cornyn, and I will ask that my full 

statement be made part of the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Cornyn. 

3 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Well, thank you, Mr. Chairman, and I want to 

thank all the witnesses for being here today for this important 

hearing. I am sad because my responsibilities down the hall at the 

Finance Committee with health care reform are going to take me 

away from here, so I will not be able to participate fully. But please 

know that is not for lack of interest. I am absolutely committed to 

the cause of open Government and freedom of information. And I 

am hoping, Mr. Chairman, that you and I can continue to work together as partners to advance this cause in the future as we have 

been fortunate to do in the past. 

I know sometimes people get the impression that in Washington 

nothing gets done on a bipartisan basis. But that is just not true, 

and I think the work that the Chairman and I have done in this 

area is a good example of that. And I would note, since our friend 

Senator Whitehouse is here, that I was proud to cosponsor with 

him the Justice Reinvestment Act legislation. 

So I think hope springs eternal for bipartisan cooperation. Even 

though we may fight like cats and dogs on some issues, when we 

find common cause, we can do some very good things. 

The OPEN Government Act of 2007 was an attempt to restore 

meaningful deadlines with real consequences to the freedom of information system and, thus, to ensure that Government agencies 

will provide timely responses to requests. Our bill created a new 

system for tracking pending requests and an ombudsman to review 

agency compliance. 

My experience, Mr. Chairman, when I was Attorney General of 

Texas and had responsibility for enforcing the Open Meetings and 

Open Records Act, was that a lot of time people did not know how 

to navigate Government when they wanted information, and so the 

ombudsman function served as a good way to avoid litigation, to 

avoid misunderstandings, and just get to the heart of the matter 

and find out what people are asking for and get them what they 

want without delay and without hassle. I am glad we are going to 

be able to do that at the Federal level. 

Today’s hearing provides the opportunity to examine whether the 

key provisions of the OPEN Government Act are being properly implemented and how effective they are. I hope our witnesses will 

offer suggestions for further improvements to the Freedom of Information Act and enforcement to build on the reforms that we have 

already passed. I am sure you have some ideas. 

Finally, I would like to speak directly to our first panel of witnesses, Mr. Perrelli and Ms. Nisbet, who appear today on behalf of 

the Federal Government. As I noted, the OPEN Government Act 

was the latest attempt to improve the Government’s response time 

to citizens’ requests for information and the thoroughness of those 

responses. But tightening deadlines and imposing consequences 

can only take us so far. 

My view is that what is most critical is a change in the ethic and 

the culture of the Federal Government when it comes to our citizens and their requests for information, which is not the Government’s. It is theirs. Citizens requesting information should be 

treated as valued customers, not as adversaries, and certainly not 

4 

as a nuisance. They should be engaged and assisted and not avoided. And that is why, again, I hope the ombudsman function will 

help in that regard. 

Ms. Nisbet, the Office of Government Information Services was 

created in part to change that ethic and to change the culture and 

to transform every corner of the Federal bureaucracy. This is a tall 

order, but one that I believe you are well suited to lead. I stand 

ready to work with you to help bring this critical change of attitude, ethic, and culture about. 

And, Mr. Chairman, thank you again for continuing our partnership. I look forward to more good work in the interests of open Government, transparency, and accountability. Thank you. 

Chairman LEAHY. Thank you very much. 

Our first witness is Thomas J. Perrelli who currently serves as 

the Associate Attorney General at the U.S. Department of Justice. 

Before that, he was the managing partner of the Washington, D.C., 

office of Jenner and Block. 

Incidentally, while Senator Cornyn is leaving, I would note that 

half of our Committee is back in Finance doing health care. 

When Mr. Perrelli was at Jenner and Block, he co-chaired the 

firm’s new media and entertainment practices. Prior Government 

experience includes service as counsel to former Attorney General 

Janet Reno, Deputy Assistant Attorney General in the Civil Division during the Clinton administration; a graduate of Brown University and Harvard Law School. 

Mr. Perrelli, glad to have you here, sir. 

STATEMENT OF THOMAS J. PERRELLI, ASSOCIATE ATTORNEY 

GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. PERRELLI. Thank you, Mr. Chairman. Good morning. 

As you indicated, my name is Tom Perrelli. I am the Associate 

Attorney General and also the chief FOIA officer for the Department of Justice. I would first like to thank the Chairman, the 

Ranking Member, and the rest of the Committee for bringing attention to the important issue of our implementation of the Freedom 

of Information Act. I know it has been a long-time issue on which 

you have focused, Mr. Chairman, and your leadership has really 

been to the benefit of the country. And I appreciate also the leadership of Senator Cornyn on this issue. 

As you know, President Obama has pledged to make his the most 

open and transparent administration in history. The administration’s efforts started on his first full day in office, when he issued 

important memoranda that called on his agencies to initiate a new 

era of open Government. The premise is simple. Openness will 

strengthen our democracy and promote efficiency and effectiveness 

in Government. 

Since that time, Federal agencies across the Government have 

been working to promote openness in a variety of ways, but we at 

the Department of Justice take particular responsibility for implementing the President’s directive with respect to FOIA. I have described a number of initiatives in my written testimony, and I 

would be pleased to talk about those further, but at least I would 

like to highlight three. 

5 

First and foremost is Attorney General Holder’s March 19 memo 

to the heads of all Federal agencies. Those guidelines advise agencies that we are taking a new approach to the disclosure of information and trying to implement, I think, really as Senator Cornyn 

suggested, a new culture in approaching the FOIA. 

In addition to strongly encouraging agencies to make discretionary releases of records, the Attorney General has made clear 

that records should not be held simply because a FOIA exemption 

may apply, to prevent embarrassment, or because of speculative or 

abstract fears. Rather, the Attorney General has made clear that 

the Department of Justice will defend a denial of a FOIA request 

only if the agency reasonably foresees that disclosure would harm 

an interest protected by one of the statutory exemptions, or the disclosure is prohibited by law. And we and our agency partners are 

implementing those guidelines every day. 

The second thing I will point to briefly is the latest edition of our 

Department of Justice Guide to FOIA, published this year in sunshine yellow, and that is a lot of FOIA for those who can see the 

size of the book. It is an indispensable resource and really the definitive manual on FOIA. And that is used by Federal agencies 

across the country and in the requester community. And having 

been both a requester and within Government, the FOIA manual 

has always been of critical help. 

Finally, I am also pleased to announce this morning that the Department is issuing updated guidance to the chief FOIA officers. 

Under the FOIA, the Attorney General is to direct agency chief 

FOIA officers to report on their agencies’ performance under the 

FOIA. This morning we are issuing guidance that will continue our 

efforts to promote openness in Government. The new guidance goes 

beyond the legal requirements of the OPEN Government Act and 

requires each agency to talk about the steps being taken at their 

agency to apply the presumption of disclosure as well as to track 

several different measures related to processing backlogs, reliance 

on certain statutes for Exemption 3, as well as their efforts to implement new technologies. We think that reporting will help encourage agencies to improve their administration of FOIA. 

Finally, I should note that we at the Department of Justice are 

particularly pleased to be testifying with Miriam Nisbet, welcoming 

the Office of Government Information Services—OGIS—to the Federal FOIA family, and we are looking forward to working with 

OGIS and to benefiting the citizens who seek information about 

how their Government works. 

Thank you, Mr. Chairman, and I would be pleased to answer any 

questions that you or other members have. 

[The prepared statement of Mr. Perrelli appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Perrelli. 

Before we go to the questions, in my longer statement in the 

record, I mentioned Ms. Nisbet and how happy I am she is here. 

She currently serves as the newly appointed Director of the Office 

of Government Information Services, or OGIS, at the National Archives and Records Administration, an office I have pushed very 

hard to get established, and I cannot think of anybody better to 

serve there as head of it. Before she assumed this post, she served 

6 

as the Director of the Information Society Division for the United 

Nations Educational, Scientific, and Cultural Organization—we 

know it as UNESCO—in Paris. Her extensive information policy 

experience includes previous work as a legislative counsel for the 

American Library Association, Deputy Director of the Office of Information Policy for the Department of Justice. She earned her 

bachelor’s degree and her law degree from the University of North 

Carolina. 

Bievenue. Go ahead. 

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

AND RECORDS ADMINISTRATION, COLLEGE PARK, MARYLAND 

Ms. NISBET. Merci. I am pleased to appear before you today. This 

Committee was instrumental in establishing the Office of Government Information Services through the Open Government Act of 

2007, which amended the Freedom of Information Act. Thank you 

in particular, Mr. Chairman, and thanks to Mr. Cornyn, for your 

vision and your perseverance in making this new office one of the 

levers for reinvigorating our country’s FOIA. 

The concept of the public’s right to access to the records of its 

Government is fundamental to our democracy. Mr. Chairman, you 

have articulated that beautifully in your opening statement. Yet 

making our Freedom of Information Act work smoothly and efficiently to accommodate that concept has proved more difficult and 

costly than we could have imagined. This Committee has continued 

to make improvements in the law over several decades—delicately 

balancing the various legal concerns for protection of certain information and the need for disclosure, as well as addressing practical 

aspects such as fees and the time limits for responses to requests 

by agencies for records, and most recently, by establishing the Office of Government Information Services, or OGIS. 

With funding received for the first time this fiscal year, the National Archives and Records Administration acted quickly early in 

the year to get the office started. Funding is also contained in the 

fiscal year 2010 President’s budget. 

I am feeling a little lonely right now. I arrived at the Archives 

a few weeks ago, and I have been interviewing vigorously to hire 

five other staff members. But soon we will be a dedicated team 

building a straightforward and simple interface between the public 

and the executive branch agencies, offering alternative dispute resolution through mediation, and helping to make the FOIA work 

better for all involved in the process. 

How will we accomplish this? Our mission is twofold. One part 

involves review of agency compliance and performance with the 

FOIA. We will, of course, work closely with the Department of Justice, which has a major and well-established role in this regard, 

and with the chief FOIA officers at the agencies. One immediate 

and feasible task is to take advantage of available technology to 

view and assess the existing agency annual FOIA reports, similar 

to what is being done to assess Federal agencies’ information technology initiatives through the IT Dashboard and data.gov. 

7 

A second part of the mission is to offer mediation services to resolve disputes between persons making FOIA requests and agencies who receive them as a non-exclusive and non-binding alternative to litigation. We will pursue several routes: 

We will use existing Federal mediation resources to help us provide this service, something that has not been done before under 

FOIA except on an ad hoc basis in litigation as ordered by the 

courts. 

We will work with existing agency FOIA Public Liaisons in our 

review and in developing our mediation capacities. 

We will create an online dispute resolution system, called ODR, 

which is a relatively new approach to conflict resolution and which 

holds great potential to efficiently process and prioritize a high volume of cases. 

Many people, and this Committee, including this morning, have 

been referring to the new office as the ‘‘FOIA Ombudsman.’’ We 

view our role in that regard as mediator—assuming, of course, that 

a FOIA requester has not already decided to go to court—and as 

a source of information, which we will provide in person as well as 

through many resources on the Web. Many agencies as well as nongovernmental organizations offer useful guides, templates, and 

good practices on FOIA, and we will promote and take advantage 

of these existing resources. 

Public understanding of how Government records are organized 

and maintained is not strong, nor should it be required to submit 

a FOIA request. But that lack of understanding can result in requests that are overly broad or which lack the specificity to allow 

the agency to readily search for the records. Similarly, the volume 

of requests—the Government receives over 600,000 FOIA requests 

per year—the sensitivity of the records, and the need to consult 

with other affected agencies all significantly impact the ability of 

agency FOIA officers to respond in a timely manner. You know this 

well. The combination of these pressures can result in misunderstandings. Clearing up those misunderstandings and seeking solutions in more complicated cases, short of litigation, would save time 

and money for agencies and the public alike, as well as bolster confidence in the openness of Government. 

In just a short time, I have received helpful advice and support 

from this Committee, the White House Open Government Initiative 

and the Chief Technology Officer, the Department of Justice, the 

National Mediation Board, innovators in the private sector, State 

Ombudsman offices, and members of the FOIA requester community. With all of these stakeholders assisting in the new office’s outreach, we will be able to realize the vision of this Committee to 

achieve the timely and fair resolution of America’s FOIA requests. 

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

be happy to answer any questions. 

[The prepared statement of Ms. Nisbet appears as a submission 

for the record.] 

Chairman LEAHY. Thank you for being here, and I am going to— 

I have a number of questions I want to ask. I am going to turn it 

over for a few minutes to Senator Whitehouse while I respond to 

another call from another branch of our Government, and then I 

will come back here. 

8 

I was surprised. You know, I was very pleased in March when 

the Attorney General issued new FOIA guidance that we restore 

the presumption of openness in our Government, and I told the Attorney General that. Now, what are some of the specific steps that 

we are taking? For example, I would ask how many times has the 

Department released additional information in a pending FOIA 

case since the new guidelines went into effort. 

Mr. PERRELLI. I do not think I have precise numbers, but I will 

say that we have taken a number of steps. Within a few days after 

the guidelines were released, we began training other agencies as 

well as Department of Justice personnel on the new guidelines. We 

have held large conferences to train and to begin the process, 

again, as Senator Cornyn said, of a cultural change. And the way 

we put it to our own personnel, as well as to agencies, is that their 

focus should be not on identifying the reason why something could 

not be disclosed, not on identifying a reason why something could 

be withheld, but on identifying those records that could be disclosed to the public. That has been a major cultural change. 

I think we have seen a number of examples within the Department of Justice and outside the Department of records released, 

and we have begun a long-term process of releasing OLC opinions. 

Our Executive Office of Immigration Reserve has now released the 

bench book, the reference book that is sitting on every immigration 

judge’s desk. 

Chairman LEAHY. But you have a—and you know that all the 

other departments are going to look and say, well, what is the Justice Department doing, because they are sending out these guidelines. And you have a number of pending FOIA cases currently in 

the Department of Justice where people have not been able to get 

their FOIA requests answered. 

What are you doing on those? Is it case by case? Is it blanket? 

What do you do so that people are not hit with ‘‘Do as I say, not 

as I do’’ ? 

Mr. PERRELLI. Certainly, that is true, and we want to make certain that in those cases the Attorney General’s guidelines are being 

applied. So we are—working with the litigating lawyers in those 

cases as well as reaching out to the agencies. And in a significant 

number of cases, I think we have been able to do some reprocessing 

and to release additional records. 

I know the head of the Civil Division has designated a senior official there who is reviewing all of the cases, and they have many 

of the high-profile FOIA cases. They are going one by one through 

those cases and identifying areas where additional records can be 

released. 

I myself have met with the civil chiefs of the U.S. Attorneys’ Offices to emphasize the need to do that in their cases as they go forward. And I know our Office of Information Policy has reached out 

both to the agencies as well as to litigating lawyers to do exactly 

that. 

So I think the agencies are seeing that we at the Justice Department are implementing it and are ensuring that they are doing it 

in cases where that is appropriate. 

Chairman LEAHY. Could you have somebody let me know how 

many cases are pending? 

9 

Mr. PERRELLI. Certainly, we can get you those numbers. 

Chairman LEAHY. Thank you. And how many agencies currently 

have chief FOIA officers and FOIA public liaisons in place? 

Mr. PERRELLI. I think 92 of 95 of the agencies have chief FOIA 

officers that have been designated, and we have been in contact 

with the three that do not. Those three have interim individuals 

who have been characterized as ‘‘points of contact,’’ and we have 

told them they need to actually designate individuals. 

Chairman LEAHY. What about posting information online? Are 

they doing that? And is that cutting back on the FOIA backlogs? 

Mr. PERRELLI. I think it is too early to tell, but we certainly are 

encouraging agencies to do exactly that because we think that will 

have an impact on backlogs. And we are directing agencies to identify records that they should regularly be able to release in the 

hopes that people will be able to find the records that they are 

looking for and not need to file a FOIA request or maybe a more 

limited one. 

Chairman LEAHY. We find that—some depending upon who can 

lobby the most, trying to slip different legislative exemptions in. I 

mentioned one that we were able to keep out, working with the Intelligence Committee. If they all come before this Committee, there 

are going to be very few exemptions made. We all understand the 

need on security. You do not file a FOIA to find out who is acting 

at this moment in troubled parts of the world with our CIA, but 

we have all seen some of these in the past: ‘‘Well, we cannot tell 

you that because it is highly classified.’’ And you have something 

where it is all blanked out. You may have seen the same thing, all 

of it, in the newspapers weeks before. I once told the Director of 

the CIA, William Casey, when he came up about the third time in 

2 weeks to the Congress to say, ‘‘I know I was supposed to have 

told you about’’ whatever the issue was, ‘‘and now that it has been 

in the press, I want to tell you more about it.’’ And I told him, 

‘‘Send this to the New York Times marked Top Secret.’’ We get 

three advantages. We get the information we want sooner than he 

would ever give it to us. Second, we got it in greater and more accurate detail. And, third, we got that wonderful crossword puzzle. 

[Laughter.] 

Chairman LEAHY. He was not as amused as the audience here 

was. But I only let people know about these statutory exemptions 

on the one hand. Also, on the other hand, how do we keep from 

adding more of them in there? 

Mr. PERRELLI. Right. This is an issue of real concern to us because when there are efforts to put an exemption in statute in an 

unclear way, it is difficult for the public, for legislators, and, frankly, for agencies as they try to implement FOIA. So we have a real 

interest in making sure that it is transparent that an exemption 

is being proposed and being discussed so a decision can be made 

on that. 

In terms of exemptions already in place, we require all the agencies to identify when they are relying on a particular statutory exemption. We actually publish on our website which statutes are 

being used as exemptions, so that can be transparent for all to see, 

and in their annual reports each agency has to identify if it is relyVerDate Nov 24 2008 11:12 Jul 06, 2010 Jkt 056885 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56885.TXT SJUD1 PsN: CMORC
10 

ing on a particular statute as a basis for an Exemption 3 withholding. 

Chairman LEAHY. I have exceeded my time. I am going to turn 

it over to Senator Klobuchar, but then I am going to come back. 

I want to talk about state secrets. Thank you. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you, both of you, for being here. 

Mr. Perrelli, I wanted to talk about the President’s FOIA memorandum from January 21st. Could you elaborate a little more about 

what it means to require agencies to have a presumption of openness and to take affirmative steps to make information public? 

How much of that is already required by FOIA? And how much of 

the President’s memo goes above and beyond the law? 

Mr. PERRELLI. Well, the message that the Department of Justice 

used to send was that if you can find a basis for withholding information, we will support you and defend that. 

The President’s memorandum changes this really from a presumption that if you can find a basis it will be withheld to a presumption that information will be disclosed unless a particular 

harm can be identified. And that is, as I said, a significant cultural 

shift that makes an enormous difference. It also encourages agencies to go beyond that, regardless of whether they get a FOIA request, and identify information that they routinely create and 

maintain that can be made public. And we have seen many agencies go out of their way with the new presumption to identify those 

records and put them up on the Web or disseminate them in some 

other fashion. And like I said, we work with agencies every day to 

help them think through this and identify those kinds of records. 

Senator KLOBUCHAR. Now, I know from having managed 400 employees when I was county attorney that culture shifts are not always that easy. I remember I once moved furniture around in our 

lobby, and within 20 minutes there were 18 negative comments 

about the new arrangement. 

And so I am just wondering how it has been working with the 

agencies. What has been the most challenging thing as they have 

gone to implement these new changes? 

Mr. PERRELLI. I think the key to all of this is training, training, 

training, as well as getting broad-based support within each agency. In Attorney General Holder’s guidance to agencies, one of the 

things he emphasized was that FOIA is everyone’s responsibility— 

an effort really to empower the chief FOIA officers of each of the 

agencies to identify issues and problems and raise resource issues 

or concerns about not having enough people, with backlogs, so that 

we can actually do this more effectively and efficiently. 

As Ms. Nisbet mentioned, there are obviously an enormous number of FOIAs submitted to the Government each year, and trying 

to keep up with that flow remains a significant challenge. 

Senator KLOBUCHAR. How about the issue of the—you drafted a 

new policy regarding partial disclosures, which seems to make 

sense to me, that even if a full disclosure of a document is not possible, you could do a partial disclosure. Have there been challenges 

with that? 

11 

Mr. PERRELLI. I wouldn’t say there have been challenges with 

that, but I think we are still working to make sure that as individuals are looking at particular documents—and, again, this is all 

about training—that their focus should be on, ‘‘are there pieces of 

this document that can be released, even if there are pieces in this 

record that may not be able to be released? ’’ And we very much 

encourage agencies to go through that process on a document-bydocument basis. I think we are starting to see the results of that 

training and trying to inculcate these ideas, and I think we are 

making progress every day. 

Senator KLOBUCHAR. And one of the provisions of the OPEN 

Government Act was a requirement that agencies assign tracking 

numbers to FOIA requests if they would take longer than 10 days 

to fulfill, and I am sure that got at some of the backlogs and what 

was going on and established ways for requesters to track the status of their request. Has this been fully implemented yet? 

Mr. PERRELLI. I think this has been broadly implemented. I am 

hesitant to say ‘‘fully implemented.’’ But I think it has been an important development just in the customer service aspect of the 

FOIA, so that people can track these things. The other piece of this 

puzzle in working with agencies, is that we have seen a wide disparity in technological ability with different agencies. We are working with them, across agencies, on best practices to try to encourage more of them to move to electronic processing, which I think 

over time is going to be extraordinarily helpful. 

Senator KLOBUCHAR. Yes, I would think you would want it more 

standardized. It would be easier to do that. 

Mr. PERRELLI. We continue to work on it. 

Senator KLOBUCHAR. Ms. Nisbet, I know you are brand new at 

your job, but do you want to add anything to this, especially about 

the standardization, trying to get things working across agencies? 

Ms. NISBET. Well, certainly I think this administration is very 

much dedicated to looking for innovative ways to use technology. 

Even older ways of using technology would be welcomed at some 

of the agencies. 

[Laughter.] 

Senator KLOBUCHAR. As opposed to no way of using—— 

Ms. NISBET. Yes, as opposed to no way. I think you see the whole 

range, and it is very much a challenge. It is technology, it is resources to support that technology. 

Our office will certainly be looking for ways to use technology to 

make our resources known and our presence known, and working 

with the FOIA officers to find the best practices, where it is working, good examples, and sharing those resources so that different 

agencies are not having to start from scratch to develop their own 

but, rather, can borrow. 

Senator KLOBUCHAR. Thank you, and I do appreciate your efforts 

here. My State has always had a very broad FOIA law and has allowed a lot of information to be shared. And I was actually quite 

surprised when I came to Washington and some of the—for instance, in the climate change area, when we were trying to get 

some of the findings with the previous administration, and the Senators had to view them in a little room by ourselves and could not 

write anything down. I was, like, ‘‘Where is this coming from? ’’ 

12 

So I am very glad that you have embarked on this new policy. 

Thank you very much. 

Ms. NISBET. Thank you. 

Chairman LEAHY. Thank you, Senator Klobuchar. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Ms. Nisbet, I understand there are FOIA requests that have been 

outstanding for 17 years, and that Government agencies have requests that have been outstanding for 10 to 15 years. How are 

those going? 

[Laughter.] 

Senator FRANKEN. And what will your office do about those? 

Ms. NISBET. I am afraid that what you have heard is not a 

rumor, from what I understand. What we will be doing immediately, as soon as we can really have somebody to answer the 

phone and deal with those kinds of issues, is use our efforts to mediate where there are stubborn cases. We will be working, of 

course, with agencies and with FOIA requesters to identify particularly difficult problems and try and get those backlogs over with. 

Senator FRANKEN. Well, what is the role—how are you going to 

mediate these things? Can you be more specific about that? Let us 

say when there is not just a misunderstanding but the person making the request and the person denying the request are just at loggerheads, how do you do that? How does that work? What is the 

role of the mediator? 

Ms. NISBET. The role of a mediator—and mediators are used in 

all kinds of fields, not only domestic disputes and financial disputes, but have been used in FOIA cases as well. The technique is 

really a matter of having a trained mediator sit down with the parties separately and together to see where the issues are and start 

trying to find ways to find a common ground and a solution. 

It is often very difficult. I will give you an example of one case 

in which I myself participated when I was in the counsel’s office 

of the National Archives in the 1990’s. One of the very, very stubborn cases in litigation that I am sure that you have heard of, that 

is pretty well known, was litigation over the White House tapes of 

former President Nixon, a very intractable case that went on for 

many, many years. But with the help of a mediator, the parties— 

the Justice Department, the National Archives, the custodian of 

the records, and the estate of President Nixon—were able to work 

through some of those very difficult issues and eventually come up 

with a plan for getting much more information released to the public. And that was a very difficult case, but mediation was very 

much the key there. 

Senator FRANKEN. Just curiously, what was so difficult about 

that? Why couldn’t the President tape himself? What was so difficult about the mediation exactly? In other words, it seems to me 

that would be a pretty clear case where that would be a public 

record? 

Ms. NISBET. Well, the Nixon White House tapes were quite 

unique in that—I would love to invite you over to the National Archives, and we could perhaps talk a little bit about it and maybe 

show you when you can listen to some of those records. But, you 

know, that was the situation in which Congress acted for the first 

13 

time to take records of a President and make them the Government’s records and not the personal records of the President. 

So it led to quite a bit of litigation, going to the Supreme Court 

over the ownership, over the legality, the constitutionality of the 

law that was passed to take the tapes, and then eventually over 

the release of them. And President Nixon continued to retain an interest under law in the release of the tapes. So everything had to 

be negotiated. A very interesting case, but we are still seeing today 

releases of those records for the first time. 

Senator FRANKEN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Franken. 

One thing I did not have a chance to ask before, Mr. Perrelli, was 

on the state secrets privilege. Last week, we learned the administration is going to start a new policy on state secrets beginning I 

guess tomorrow. The Attorney General’s new policy has several 

parts actually taken from the State Secrets Protection Act, which 

I have introduced along with several members of this Committee. 

I think that does show new openness, but I want to make sure that 

the decision whether to invoke state secrets or not has real judicial 

review. And if you do not have legislation to make it permanent, 

the next administration could easily change it. 

We are all familiar with the use of state secrets, but as I review 

some of the cases we have seen around this country, I think it has 

been overused. It is one thing to use the question of state secrets 

if indeed the security of the country is at stake. It is another thing 

to use it when it is ‘‘let us cover up our mistakes’’ kind of usage. 

Are the courts going to have the ability to review the evidence 

the Government uses if it wants to justify the privilege of state secrets? 

Mr. PERRELLI. Well, Mr. Chairman, the policy that the Attorney 

General is implementing as of tomorrow is an important step here 

in protecting classified information, as well as ensuring that it only 

is invoked in a manner that we think is legally defensible. 

As you indicated, the plan has a number of steps. Invocation of 

the privilege will be reviewed by a Department committee. The decision will be made by the Attorney General. It will not be asserted 

by the United States in a situation where you are trying to cover 

up embarrassment or a mistake. And we anticipate that the courts 

will review those determinations as they do today. 

Chairman LEAHY. Well, because I might say if it is used all the 

time, then it might as well as be used none of the time, because 

it is going to lose any credibility. I do want the ability of courts to 

review, and that is why I will keep pushing on the State Secrets 

Act that we have pending right now before the Committee, not just 

for this administration but for future administrations to have some 

guidelines. 

I might say, Ms. Nisbet, you know, Senator Cornyn and I have 

worked very hard to have your office. I hope you will keep us posted here on those things that are going right, but also let us know 

the things that are going wrong. We want to know what is working 

in the office, but also if you find things that you do not think are 

working or that the law creates problems for you, let us know. We 

14 

do not kill the messenger up here—actually, we do now and then, 

but—— 

[Laughter.] 

Ms. NISBET. You will make an exception in my case. 

Chairman LEAHY. We kill reluctant messengers. We do not do 

that to people who are willing to tell us. 

We will take a 3-minute recess while we change around the 

table, and then we will go to the next panel. 

Ms. NISBET. Thank you. 

Mr. PERRELLI. Thank you, Mr. Chairman. 

[Recess 10:52 a.m. to 10:56 a.m.] 

Chairman LEAHY. If we could reconvene, please. We have two 

witnesses here: Tom Curley, who was named the President and 

Chief Executive Officer of the Associated Press in June of 2003. 

That is impossible. That is 6 years. Since assuming the position, 

Mr. Curley has worked to deepen AP’s longstanding commitment to 

the people’s right to know. He is one of the country’s most outspoken advocates for open government and has testified before this 

Committee. He holds a political science degree from Philadelphia’s 

La Salle University and a master’s degree in business administration from Rochester Institute of Technology. 

And the other witness will be Meredith Fuchs. She is General 

Counsel for the National Security Archive at George Washington 

University. In that capacity, she oversees Freedom of Information 

Act and anti-secrecy litigation, advocates for open Government, lectures on open Government, a former law partner in the Washington, D.C., office of Wiley Rein LLP; a bachelor’s degree from the 

London School of Economics in political science; received her J.D., 

cum laude from the New York University Law School. 

Mr. Curley, we will begin with you, and then go right to Ms. 

Fuchs. 

STATEMENT OF TOM CURLEY, PRESIDENT AND CHIEF EXECUTIVE OFFICER, THE ASSOCIATED PRESS, REPRESENTING 

THE SUNSHINE IN GOVERNMENT INITIATIVE, NEW YORK, 

NEW YORK 

Mr. CURLEY. Mr. Chairman, thank you for this invitation and 

your continuing commitment to safeguarding our liberties through 

open Government. 

Mr. Chairman, your work is not done. The secrecy reflex at too 

many agencies remains firmly in place. FOIA still contains relatively weak penalties for those who do not meet their disclosure 

obligations. 

I would like to make four points. 

First, we in the news media still find Federal agencies unresponsive to the declarations from the White House that Government 

must become more open. We truly appreciate the change in policy 

direction, but the change has not reached the street. A stronger 

FOIA is still the public’s best defense against harmful Government 

secrecy. Unfortunately, the effort to conceal is greatest where public interest is highest. 

Second, the Office of Government Information Services eventually can be extremely valuable to FOIA requesters as an adviser 

and sometimes as a mediator of disputes. But OGIS is tackling 

15 

enormous challenges with very modest resources, and we urge the 

Committee to continue its close monitoring and support of the new 

office as it finds its footing. 

Third, FOIA’s privacy exemption may need the Committee’s attention. Courts in some important cases appear to be ignoring the 

intent of Congress when a past FOIA that is public records containing personal information qualify for the exemption only when 

that information is highly personal, private, and sensitive. Some 

judges are satisfied with a mere showing that a person is mentioned by name in a document. Then they compound the error by 

refusing to recognize any public interest in disclosure unless the requester knows in advance that they are likely to contain evidence 

of Government misconduct. That is not the proper balancing of interest that FOIA is supposed to require. It is wrong. It is causing 

problems. And we think it may take changes in the language of 

FOIA Section 6(b) or b(6) and b(7) to fix it. 

The fourth and final point is that the so-called b(3) amendments 

to the legislation are severely undermining FOIA’s ability to preserve the public’s access to Government activities and information. 

As you know, b(3)s are provisions embedded in other laws that put 

certain very specific kinds of information beyond FOIA’s reach. 

They often are inserted with no discussion, and they now constitute 

a very large black hole in our open public records law. 

The Sunshine in Government Initiative found about 250 b(3)s on 

the books, and about 140 of those show up in agency denial letters 

every year. In many cases, these special exemptions protect information already covered under one or more of the other exemptions 

in FOIA Section b. In other cases, they are creating whole new categories of information not subject to disclosure. 

But the real problem with these exemptions is that writing them 

into statute forecloses any chance of an impartial determination 

that a valid reason applies to all the information that has been effectively roped off. Whether or not one of the general FOIA exemptions should cover a particular information request is subject to 

court review. But a statutory exemption for very specific information is not. 

The FAA, for example, has a b(3) exemption that lets it withhold 

information voluntarily submitted to aviation regulators regarding 

the safety and security of air travel. You may remember that this 

is the exemption the FAA was planning to use as the basis for 

holding information the agency collected about airports where birds 

in flight paths are crippling or even bringing down airliners. 

Also secret are the identities of watermelon growers, the identities of people who handle honey, and the ingredients in cigarettes. 

B(3) exemptions hide the private sector advice that Government 

trade representatives and Congressional committees use to shape 

trade policy and also the studies that chemical plants conduct to 

determine the impact of any worst-case accident on neighboring 

communities and the environment. 

There may be valid arguments for putting a secrecy label on 

some of this information, but the real concern is that whatever argument exists have not been challenged or even discussed in any 

public forum, and the b(3) exemptions mean a disappointed FOIA 

16 

requester will find it nearly impossible to challenge them in the 

courts. 

Nobody knows exactly how many of these exemptions there are, 

but AP reporters encounter them on a routine basis. We regarded 

the OPEN FOIA Act, which you, Chairman Leahy, and Senator 

Cornyn introduced earlier this year, as a much needed first step toward reining in this alarming trend. Your proposed statute would 

make it possible for anyone who is watching for b(3) exemptions in 

proposed legislation to spot them easily. 

I hope you can keep the OPEN FOIA Act on track toward passage, and I hope Congress will then build on it with some additional steps such as automatic sunsetting of b(3)s and special scrutiny of b(3) exemptions, including a White House-OMB review process before these exemptions can be submitted by Federal agencies. 

Chairman Leahy, thank you very much. 

[The prepared statement of Mr. Curley appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. I am going to get back to questions 

in a moment, but you are not willing to concede that it is vital for 

national security to keep the identity of watermelon growers secret? I mean, what kind of patriot are you? 

[Laughter.] 

Mr. CURLEY. Well, it did make for a great story. 

Chairman LEAHY. I do remember very well the flights and birds. 

I mean, I just went right through the ceiling. As someone who flies 

virtually every week—well, anyway, we will get back to that in a 

moment. 

I should say, for anybody who wants to yank that part of the 

record out of context, I was joking on the question of your patriotism. You almost have to do that these days. 

Ms. Fuchs, go ahead, please. 

STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, THE 

NATIONAL SECURITY ARCHIVE, WASHINGTON, D.C. 

Ms. FUCHS. Thank you, Mr. Chairman. I am delighted to talk to 

you today about the Freedom of Information Act. 

The outlook is quite different today than it was in March 2007, 

when I last appeared before this Committee. Thanks to the efforts 

of this Committee, and particularly your own efforts and Senator 

Cornyn’s efforts, the OPEN Government Act of 2007 was enacted 

into law. Thank you for that and, in addition, the sustained interest this Committee has shown in the administration of FOIA has 

had an impact across Government, so thank you again for that. 

And I hope you continue regular oversight in this area. 

As you know, the OPEN Government Act of 2007 amended FOIA 

in numerous ways. In my written testimony, I have included some 

details about specific provisions, but today I want to talk about two 

particular issues under the OPEN Government Act. One is we are 

delighted with the appointment of Ms. Nisbet as the first Director 

of the Office of Government Information Services. The National Archive and Records Administration was very open during the process of developing startup plans for OGIS, and Ms. Nisbet has so far 

shown the same openness to hear the input of the requester community as she sets up her office. We urge this Committee to conVerDate Nov 24 2008 11:12 Jul 06, 2010 Jkt 056885 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56885.TXT SJUD1 PsN: CMORC
17 

tinue to use its efforts to ensure that OGIS is on firm financial 

footing and that the Federal Government FOIA community participates in OGIS’ mediation activities in good faith. 

Second, with respect to the OPEN Government Act, I want to 

touch on the state of FOIA backlogs. I can see that Senator 

Franken at least read my testimony, which pointed out that as of 

the end of fiscal year 2008 there were still quite old backlogs in 

FOIA requests. The OPEN Government Act—— 

Chairman LEAHY. I would note that Senator Franken is one of 

the hardest-working Senators I have met in a long, long time. 

Ms. FUCHS. That is great. Well, I think that the reason he asked 

that question is because it is quite shocking to imagine that there 

are still FOIA requests that are 17 years old. 

The OPEN Government Act has changed the reporting requirements under the FOIA, and the reason it was necessary for it to 

do that was because the prior annual agency FOIA reports did not 

provide an accurate picture of the State of FOIA. Under prior law, 

agencies only collected what information the law required. They did 

not design systems to help them with tracking or managing their 

FOIA requests. In fact, some agencies did not even have any tracking system, which is a reason that you all added tracking requirements to the OPEN Government Act. 

The new law should change things. Unfortunately, because many 

agencies have such antiquated systems, I do not feel that the annual reports filed for fiscal year 2008 are fully illustrative of the 

State of FOIA. Sadly, they did show that agencies have requests 

as old as 17 years, 15 years, 10 years, and the like. We are going 

to look hard at the annual reports that will be developed in the 

next couple of months for fiscal year 2009, and I urge this Committee to do so as well. 

Then I would like to turn a bit to talk about the Obama administration. As you know, President Obama on his first full day in office issued a series of memoranda and executive orders on open 

Government issues. One of these was a FOIA memorandum. I 

reread that memo this morning, and I am struck by the vision of 

openness and accountability it espouses. It says, ‘‘All agencies 

should adopt a presumption in favor of disclosure in order to renew 

their commitment to the principles embodied in FOIA and to usher 

in a new era of open Government.’’ Soon after this memorandum, 

as you know, Mr. Holder issued a FOIA memorandum, and the Department of Justice also soon issued detailed guidelines for agencies. 

So in preparation for today, I pondered whether we have entered 

a new era of open Government which the President asked for. Most 

of the people I have spoken to are happy with the overarching principles that this administration has articulated, but they worry 

about the implementation. 

One area in particular that people are concerned about is whether the new standards have been applied to FOIA cases currently 

in litigation at the time the policies were issued. 

I myself have a case in which we asked the Department of Justice if it wished to re-review certain records, and the Department 

declined. I heard similar stories from other litigators, and I have 

seen court records saying that same thing. 

18 

But I also know of several cases where the Department of Justice 

has released additional records. Some of these were very high profile cases, and there were many factors other than the FOIA policies that were influential, such as the interrogation memoranda 

and the IG report from the CIA on interrogation. But there are 

other less well known cases. And we have also seen that in response to regular FOIA requests, agencies are processing more. 

Mr. Perrelli suggested that the new standards have been applied 

in all instances, and with respect to that, I suggest this Committee 

ask the Department to report on the results of its litigation review 

and to report whether it has refused to defend FOIA cases under 

the new standard. 

I would finally like to quickly address two additional issues 

about implementation. I have a list of recommendations in my testimony that I hope will be considered, but I would like to—— 

Chairman LEAHY. All of which will be part of the record. 

Ms. FUCHS. Thank you. The first is that we hope that the Office 

of Management and Budget and the Department of Justice will 

renew their Committee to E-FOIA implementation and help us 

move from an affirmative disclosure model where FOIA requests 

are limited to the most difficult cases. 

Second, we would like to see the administration agree to treat 

the White House Office of Administration as an agency for the purposes of the FOIA. We have been involved in litigation about preservation of White House e-mails, and the Office of Administration 

is the central office responsible for that. 

I do not have much time to talk about future threats to FOIA. 

I will note that yesterday a copy of a draft executive order on classification was leaked, and it has some very good innovations; it has 

some backward steps in it as well. If this hearing was broader than 

FOIA, I would have plenty to say about that. But the question is: 

Have we entered a new era of Government? 

I guess my conclusion is that the door is open and we can see 

the light, and I am hopeful that the Obama administration will 

walk right out into the sunshine and fully implement the principles 

that the President articulated on January 21st. 

Thank you. 

[The prepared statement of Ms. Fuchs appears as a submission 

for the record.] 

Chairman LEAHY. Do you think it is too early to tell whether the 

guidelines are going to work? 

Ms. FUCHS. I think that the guidelines are having an impact, but 

I think it is too early to tell because, you know, the agencies have 

not fully implemented them, and we do not know how a range of 

FOIA requests are going to be handled. There have been high-profile releases, but there have been high-profile withholdings as well. 

Chairman LEAHY. And that long backlog that Senator Franken 

referred to is still there. 

Ms. FUCHS. I believe it is still there. 

Chairman LEAHY. Some of it will just disappear because the requesters will give up, which is a very—that bothers me. And tell 

me if I am correct in being worried about that, that if that becomes 

the norm, does that not encourage departments to keep things hidden? 

19 

Ms. FUCHS. I think you are exactly right, Mr. Leahy. Some of the 

annual reports from agencies demonstrate that requesters have 

simply walked away because they actually—some of them report 

numbers of cases closed because the requester lost interest. 

Hopefully, if agencies could get their backlog to something more 

reasonable, people would not be walking away. 

Chairman LEAHY. I want to follow up on that with Mr. Curley, 

because we have the ombudsman provision in the OPEN Government Act that I discussed with Director Nisbet. Now, in 2005, a 

member of the Sunshine in Government Initiative testified before 

the Committee. I want to make sure I have got this right. He said, 

‘‘Nearly one-third of FOIA requests were denied in 2004.’’ And so 

the only thing they could do is pursue litigation, which could not 

only take a long, long time, but it would be very costly. 

Now, if your association or any major news-gathering organization had one specific thing of some significance, you might be willing to undertake that litigation. But I am thinking that on the routine things, the person who does not have any resources should not 

have to have costly litigation. The OPEN Government Act establishes an agency ombudsman. Do you think that the FOIA ombudsman as an alternative to litigation might help? 

Mr. CURLEY. Senator, absolutely. Obviously, we are in the opening weeks, but I think the provision was both prescient and in time 

it may turn out to be precious—prescient because the industry is 

under such dire financial conditions right now that having a nonlegal, if you will, a non-court approach might be very helpful in getting some expedited attention to these requests. 

In time, that may prove to be a very good way, but there are a 

lot of priorities that have to be set, a lot of details that have to be 

gone through. And, again, I come back to the agencies that are 

most in the public interest in terms of Defense, Homeland Security, 

Justice, Treasury are most unwilling to give up their secrets right 

now. So it is going to take a while to sort through these procedures. 

Chairman LEAHY. And in this regard, I have a philosophical concern. I begin with the idea that we Americans have a right to know 

what our Government is doing. More importantly, we have a right 

to know when our Government screws up and makes mistakes. 

What I have seen especially since 9/11, it is a lot easier to say 

I will just close the door on that, that is secret, we cannot know 

about it. We have seen in the Archives where material that has 

been there, open, available to anybody for years, is suddenly taken 

off and is not available because it is considered top secret. We have 

seen things that have been on Government websites for months, 

maybe a year, and taken off. 

Now, part of this is an unnecessary paranoia. Some part of it is 

in some areas perhaps because there is a security concern, and I 

think that we all respect that. But part of it, I think, is a very easy 

way of saying I do not want you poking around whether I screwed 

up. It is that last part that really bothers me. 

Now, as you mentioned, tell me a little a little bit about the watermelon growers and the beekeepers. I mean, this is somewhat absurd, and I am sure that is why you mentioned it. 

Mr. CURLEY. It is really just things that have been slipped into 

legislation over the years. Deals are made in provisions in laws at 

20 

midnight or 1 a.m. and it gets in. And right now, as you know, 

there is no provision to call and attempt to put something in a b(3) 

provision into the record or have any discussion about it. So routinely these things are being done now, and whole areas of information are being kept from the people. 

We also find the upstream requests under b(5). Agencies are calling a lot of the discussions pre-decisional so they do not have to 

release it there. 

So there are a number of areas here where people are just holding back. It should be fun to know why we cannot find out about 

the honey growers or the watermelon people, and it has been impossible to figure it out. But this is just an absurd example of 

something that is happening routinely, at least we figure out, about 

140 times a year in Washington. 

Chairman LEAHY. I have a very real concern about that. I make 

the argument that this Committee has jurisdiction over that and 

we should be discussing it. I mentioned when they tried to put 

something into the intelligence authorization, we were able to pull 

back on it. But we have a President who seems deeply committed 

to FOIA. I know my discussions with him when he was in the Senate and my discussions with him since he became President tell me 

that. 

My touchstone still is how do we keep this going, not only for 

this administration but the next administration. I mean, there will 

be other people in your chair, both of you, testifying. There will be 

somebody else here as Chairman. I do not want the next person to 

have a less commitment to it. How do we make sure that we have 

got it right in the law? How do we keep the pressure up? 

Mr. CURLEY. Well, I think your efforts here have been extraordinary, and I think we are going to suggest that we do need further 

amendments in the law to have these things institutionalized. Certainly, directionally the music is sweet that we are hearing, but 

turning the ship of state in a bureaucracy as vast as this one, as 

you well know, is not going to happen in 9 months—and maybe 

even 9 years. And so how does that happen? 

From a management standpoint, there are some things that can 

be done, and we have heard the Associate Attorney General tell us 

about those. My colleague on the panel, Meredith, has some very 

good suggestions as well. But ultimately a tougher law closing 

some of the loopholes will be required. 

Chairman LEAHY. I have always found in Government that inertia is a lot easier than initiative, and we will work for initiative. 

Do you want to add anything further to this, Ms. Fuchs? 

Ms. FUCHS. Well, I would simply add that, you know, the OPEN 

Government Act was enacted into law in 2007, and very few agencies have taken its provisions and implemented regulations that incorporate those provisions. And I think that that is one thing that 

will help solidify some of the gains of the law, and, you know, 

ideally they would also in the regulations add the presumption of 

disclosure that has been articulated by the President. 

But other than that, I would agree with Mr. Curley. Constant 

oversight by this Committee, new laws or closing loopholes in the 

laws, those will be important. And I think it is great that this administration has such a different vision because if the next adminVerDate Nov 24 2008 11:12 Jul 06, 2010 Jkt 056885 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56885.TXT SJUD1 PsN: CMORC
21 

istration, whatever it will be and whenever it will be, reverses, 

again you will see a reaction from the open Government community. 

Chairman LEAHY. Thank you very much. 

Mr. CURLEY. Thank you. 

Ms. FUCHS. Thank you. 

Chairman LEAHY. We will stand in recess. 

[Whereupon, at 11:19 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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Æ 


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