59

Congress amended the 1966 FOI Act several times before 1989
but it did not alter the privacy exemption or seek to remedy its

implementation or enforcement.

The Reporters Committee Case

In 1989, the U.S. Supreme Court ruled sua sponte in
Reporters Committee that Congress envisaged a “core purpose”
behind the enactment of the FOI Act. It said that Congress
intended the statute to shed light on the operations and

activities of government. The high court then said that this was

the only purpose that could be considered in deciding whether
certain information would be disclosed, or would be withheld for

privacy reasons.

In the Reporters Committee case, which involved a request

for the criminal history ~rap sheet” of a Defense contractor with
close ties to a corrupt congressman, the high court said that
because the records would not shed light on government operations
and activities, the privacy interest of the contractor would
outweigh any public interest in them, justifying withholding
under Exemption 7(C).

Ever since that decision, the balancing test has been
heavily skewed in favor of privacy. When requested government
information concerns individuals, a privacy exemption is almost
always invoked by the government. Any asserted public interest

that does not fit the Supreme Court's narrow definition of “core


123

Mr. Horn. OK. Let me ask Mr Collingwood, when an individual
requests his or her own FBI file, is this strictly a FOIA request or
does the Privacy Act come into play?

Mr. COLLINGWOOD. We consider that a request under the Privacy
Act, and there’s a different standard applied to it.

Mr. Horn. Yes. So would that mean if it’s a Privacy Act question,
that would lead to the lengthening of the time it takes to get that

le?

Mr. COLLINGWOOD. Actually, it shortens the time.

Mr. Horn. If it’s the individual requesting their own file, 1 mean.

Mr. CoLLINGwoop. Right. As I mentioned, we have fully em-
braced the multiple queue concept, broken down both with Free-
dom of Information Act and Privacy Act. A great many of people
who write in for their own files find either that we don’t have a
file, much to their relief, I think, or the file that we do have is rel-
atively short, it goes in the smallest queue and gets processed rel-
atively quickly.

Mr. Horn. So for the individual there’s hope that, what, a couple
of months go by or something, then they will hear something?

Mr. CoLLINGwoop. Unfortunately, I think we’re still measuring
it in years as opposed to months, but it is an area where we made
dramatic improvement. Everybody understands in the section how
important the individual requester is, and in some cases we are
seeing turnaround in months. But, you know, we remain confident
that they will be the first group of individuals who will benefit
from no delay.

Mr. Horn. Those individuals that are seeking their own file, do
they have to file on a special form that the FBI has, or is it simply
a letter where they give you maybe the Social Security number,
their address, so forth?

Mr. COLLINGWOOD. It’s a letter, but it requires some proof of who
they are, either through a notarized signature or otherwise.

Mr. Horn. Right. Let me move back now to the lack of resources
for a minute, or just resources generally. Let me start with you,
Mr. Huff. Who makes up the budget request for your particular of-
fice?

Mr. Hurr. For my office as opposed to the Department?

Mr. Horn. Yes. Well, your office within the Department, do you
make that budget up, or who does?

Mr. Hurr. Our office is rather unique in that we have—we are
a totally reimbursable component, and we don’t set up or make a
budget request as such. We are reimbursed for all of our costs by
the components.

The FBI certainly is very well aware of that, because based on
the number of hours we spend on administrative appeals for each
of our components, those components then have the joy of paying
our bills for occasionally reversing some of their opinions and/or de-
terminations. So right now we have a budget of $3.6 million, but
we don’t have an annual submission because we are a reimbursable
component.

Mr. Horn. Was that in the law when your office was set up, or
do you have a general statute that permits that?

Mr. HuFr. I don’t believe that is anywhere in the Freedom of In-
formation Act. It is the manner in which the Department of Justice


25

Second, the OMB has done little to encourage implementation of the Government
Information Locator Service or “GILS” that Congress directed OMB to establish in 1995. Like
Section $52(g), GILS is intended to help the public locate government information by providing
a “virtual card catalog” of agency information holdings. GILS has failed, however, because many
agencies have made only nominal efforts to provide the information necessary to establish GILS,
and most of the agencies that provided GILS entries do not have plans to keep their entries
current. Although OMB launched GILS with considerable fanfare, it now appears to have
orphaned the project. It has not made a serious effort to cure the problems with the Service, and
GILS does not provide a reliable source of information on government record holdings.’

‘Third, OMB has approached implementation of the 1996 Amendments to the FOIA with
the same lack of enthusiasm that has crippled GILS. Indeed, although the reference materials
required by Section 552(g) are supposed to supplement GILS, for most of the past year OMB has
encouraged agencies to equate the reference materials required by Section 552(g) with OMB's
‘own, limited definition of GILS. In April, 1997, OMB told agencies that they could satisfy
Section 552(g)'s requirement that they provide the public with indices and descriptions of major
information systems if they provided a GILS “presence” under a 1994 OMB Memorandum that
allows agencies to omit many information systems from the indices they disclose to the public.’
‘A number of public interest groups, including Public Citizen, requested that OMB rescind these

instructions because they were inconsistent with the statute and crippled the public’s ability to

7 See Moen & McClure, An Evaluation of (LS, GILS Implementation (une 30, 1997);
OMB Watch, Potholes on the Information Bridge to the 21st Century, 5 Gov. INF. INSIDER,
No. 3, 10, A-8 (Summer/Fall, 1996).

* OMB Memorandum M-97-10 (April 7, 1997).

8


149

The Honorable Stephen Horn
Page 2

identify, and describe their major information systems Second,
using the exemplars from the pilot components as models, the
remaining DOJ components would then be asked to supply similar
information for their major information systems. Finally,
information about these major information systems would be
reviewed, formatted and published on each component's FOIA
webpage and linked to the Department's FOIA homepage under
“Reference Guide."

It was decided at initial stages of the project that the
Department would provide this information by component, rather
than at the Department level, because of the diverse nature of
DOJ components, both in terms of size and mission. In choosing
the prototype components, the task force selected the Antitrust
Division, as representative of the Department's litigating
components, and the Federal Bureau of Investigation, as
representative of the Department's large law enforcement
activities. It was felt that the use of these two totally
different components would produce a more representative sample
of typical major information systems for use by all DOJ compon-
ents than prototypes involving only the large law enforcement
components, such as the Federal Bureau of Investigation, the
Immigration and Naturalization Service, or the Bureau of Prisons.

Since the task force began its work in June, task force
members have met with representatives of both components and the
prototype work with the Federal Bureau of Investigation and the
Antitrust Division is near completion. Both components have
provided draft descriptive lists of their major information
systems to the task force. The Federal Bureau of Investigation
and the Antitrust Division have tentatively identified six major
information systems within their organizations. Their
information is being incorporated into a formal information
request to the remaining components in the Department, each of
which will be asked for input about its major information systems
for the project. With thirty-six additional components to be
canvassed, it is expected that the list of major information
systems will grow substantially as components respond to the
information request .

Simultaneously, the task force has already been working with
technical personnel within JMD to develop appropriate enhance-
ments to existing Departmental webpages to allow inclusion of
information about the major information systems. Within the next
few weeks, the task force will complete its developmental work on
the webpages, and with the assistance of the two pilot
components, will begin publishing information about their major
information systems on the Department's website on their
respective FOIA webpages. As information becomes available from
the other components, it will be published on the Internet in the


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
CHRISTOPHER COX, California EDOLPHUS TOWNS, New York
ILEANA ROS-LEHTINEN, Florida PAUL E. KANJORSKI, Pennsylvania
JOHN M. McHUGH, New York GARY A. CONDIT, California
STEPHEN HORN, California CAROLYN B. MALONEY, New York
JOHN L. MICA, Florida THOMAS M. BARRETT, Wisconsin
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
DAVID M. McINTOSH, Indiana De
MARK E. SOUDER, Indiana CHAKA FATTAK, Pennsylvania
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
JOHN B. SHADEGG, Arizona DENNIS J. KUCINICH, Ohio
STEVEN C. LATOURETTE, Ohio ROD R. BLAGOJEVICH, Illinois
MARSHALL “MARK” SANFORD, South DANNY K. DAVIS, Illinois

Carolina JOHN F. TIERNEY, Massachusetts
JOHN E. SUNUNU, New Hampshire JIM TURNER, Texas
PETE SESSIONS, Texas THOMAS H. ALLEN, Maine
MICHAEL PAPPAS, New Jersey HAROLD E. FORD, Je., Tennessee
VINCE SNOWBARGER, Kansas —
BOB BARR, Georgia BERNARD SANDERS, Vermont
DAN MILLER, Florida (Independent)

RON LEWIS, Kentucky
Kevin BINGER, Staff Director
Daniet R. MOLL, Deputy Staff Director
Davip A. Kass, Deputy Counsel and Parliamentarian
Juprr McCoy, Chief Clerk
PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION, AND TECHNOLOGY
STEPHEN HORN, California, Chairman

PETE SESSIONS, Texas DENNIS J. KUCINICH, Ohio

THOMAS M. DAVIS, Virginia PAUL E. KANJORSKI, Pennsylvania

JOE SCARBOROUGH, Florida MAJOR R. OWENS, New York

MARSHALL “MARK” SANFORD, South CAROLYN B. MALONEY, New York
Carolina JIM TURNER, Texas

JOHN E. SUNUNU, New Hampshire
RON LEWIS, Kentucky

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California
J. RUSSELL Georce, Staff Director and Chief Counsel
JOHN HYNES, Professional Staff Member
MartHew EpeRt, Clerk
BRIAN COHEN, Minority Professional Staff Member

ab


119

Mr. Horn. Go ahead.

Mr. SUNUNU. But over 400 backlog requests in your office?

Mr. Lopez. No, no. Let me clarify that. The Freedom of Informa-
tion Act office has two ways of processing the FOIA requests. One,
we serve as that office which tracks and assigns FOIA cases to
other offices within the Departments who have custody of the docu-
ments. Two, a centralized system which we entered into 2 years
ago, in which we actually process those requests. That average for
those cases is about 180 days.

Mr. Horn. I guess I’m a little confused. The 180-day average,
what type of request is that? It involves no declassification?

Mr. Lopez. That is correct.

Mr. Horn. Give me an idea of a few documents like that.

Mr. Lopez. Well, the Department 2 years ago engaged in a cen-
tral—in piloting a centralized system in which the FOIA office ac-
tually would obtain the documents from the program offices, which
could include requests for—from the Office of Environment, Health
and Safety, radioactive waste, Civilian Radioactive Waste. Those
documents are sent to the FOIA office and reviewed within the
FOIA office, the deletions are made, and any other concurrence is
coordinated within the Department.

The average time for processing of those requests is about 180
days. For those requests the FOIA office does not process, does not
actually review the documents and do the deletion, it is 495 cases—
495 days.

Mr. Horn. So when the operating divisions have it, they take a
lot longer?

Mr. Lopez. That is correct.

Mr. Horn. And do you nudge them every once in a while?

Mr. Lopsz. Yes. The office has improved its processing or track-
ing of those requests by requiring monthly status reports on that.
We also have formed, in the last 2 years, access teams which go
into the program offices and assist those program offices on their
particular backlogs. We do monthly reports now, weekly and
monthly reports, on those cases.

Mr. Horn. So a reporter going in to ask for certain information,
they can check with you every month to see where the file is and
if it’s coming?

Mr. Lopez. Yes.

Mr. Horn. So you've got the responsibility? I think it’s an inter-
esting idea to use your resources to go down there and say, “Hey,
folks, what’s the problem, why can’t we get this freed up?”

Mr. Lopez. And that’s how those access teams have been used
to assist those offices. We routinely make those available to pro-
gram offices when they—their backlog seems to increase.

Mr. Horn. When you've got 495 days, it seems to me you need
some more resources, don’t you?

Mr. Lopez. Yes, sir, and that’s why I started my response with
resources is an issue for us.

Mr. Horn. Mr, Sununu.

Mr. SUNUNU. One, of the requirements of the 1996 amendments
was to create or to make available an index of all of your agency
information systems. And I’d just like a response from each as to


68

‘APPENDIX

The "core purpose" continues to be utilized in the following
cases decided since passage of the Electronic FOI Act. None of
the decisions acknowledge the finding.

“The release of names, addresses, and similar “private”
information reveals little, if anything, about the operations of
the Department of Veterans Affairs." "(I}n this case, providing
the requested information -- the names and addresses of the
individual workers -~ would not enhance agency enforcement of
Prevailing wage laws.” We

Sta’ '

1.
Veterans Affairs, ey F.3d sot 738 Cir. 1998).

The U-S. Court of Appeals in Washington, 0.c. relied on the
s declaration that a request for personal
information in government files, unless it is for the narrow
purpose of shedding light on the operations of the government
cannot be in the public interest.
Justice, 139 F.3d 944 (D.C. Cir. 1998).

In January 1997, a federal district court in Washington
D.c. cited for the proposition that “the
public interest is in shedding light on the agency's performance
of its duties, not the individual's interest in obtaining
particular information." Butler v. Department of the Treasury,

1997 WL 138720 (D.D.C. 1997).
Relying on the Reporters Committee standard, the federal

district court in Washington, D.c. held that the Army must
disclose records of flawed HIV vaccine research conducted in
1991-1993. The "substantial" public interest in alleged
misrepresentations and scientific misconduct regarding results of
the testing outweighed the research project director's "generally
minimal" privacy interests. e £1 , 970
F. Supp. 19 (D.D.C. 1997).

The federal district court in Washington, D.C. followed the
public interest standard when it ruled that
Drug Enforcement Administration records were properly withheld.
"(The requester] does not explain how acquiring access to the
withheld documents would enable him to shed light on the DEA's
functions." Reiter v. Drug Enforcement Administration, 1997 WL

470108 (D.D.C. 1997).

Evaluating the public interest in the disclosure of data
submitted to the Bureau of Alcohol, Tobacco and Firearms by
federally licensed gun dealers in several states, the district
court in Washington, D.C. acknowledged that "[t]here must be some
public interest in disclosure, and it must reflect FOIA‘'s core
purpose of ‘shedding light on an agency's performance of its
statutory duties.'" The court held that the public interest did
outweigh "miniscule (sic] privacy interests." Center to Prevent



152

for processing all the incoming and outgoing paper wherever it is
found around here; Mason Alinger, staff assistant; and then three
interns, Betsy Damus, Mark Urciuolo, and David Graff. For the mi-
nority, we have Brian Cohen for the professional staff, Earley
Green, staff assistant; and Jean Gosa, the clerk for the minority.
And then our court reporters, both Julie Bryan and Cindy Sebo.

With that, this hearing is adjourned.

(Whereupon, at 12:30 p.m., the subcommittee was adjourned.]

1e)


79
-5-

Inspector General's executive summary of his report on the FBI's

investigation of Aldrich Ames.

In pursuit of EFOIA's goal of reducing backloga of
pending FOIA requests, the Department has made significant
progress. Most significant ie the progress made by the Federal
Bureau of Investigation in reducing ite large backlog of FOIA
requests, which is being discussed by a representative of the FBI
here this morning. I want to emphasize that other components of
the Department have also significantly reduced their backlogs.
For example, the Drug Enforcement Administration has reduced its
backlog from 467 requests to 30; the Bureau of Prisons has
reduced its backlog from 705 to 153; the Executive Office for
United States Attorneys has reduced ite backlog from 614 to 24;
and the United States Marshale Service has reduced its backlog
from 479 to 5. This demonstrates the Attorney General's strong

commitment to FOIA requesters.

Make no mistake, some components of the Department have
only moderately reduced their backlogs. ‘The Immigration and
Naturalization Service -- which received over 100,000 requests

last year -- has reduced its backlog by 16%. Although this is


15

Mr. Horn. Mr Tankersley is the senior staff attorney for the
Public Citizen Litigation Group. Mr. Tankersley.

Mr. TANKERSLEY. Thank you, Mr. Chairman, and thank you for
the opportunity to appear before you today to discuss the imple-
mentation of the Electronic Freedom of Information Act Amend-
ments of 1996.

As you indicated, I am senior staff attorney with Public Citizen
Litigation Group, a nonprofit consumer organization that over the
past 27 years has represented FOIA requesters in approximately
300 lawsuits challenging government secrecy. Over the past 10
years, a great deal of our work has involved litigation over access
to records in electronic form, and one of our most recent suits
charges that the Office of Management and Budget and a number
of other prominent agencies have failed to fully implement the
1996 Amendments to the Freedom of Information Act.

Today I want to focus on two specific requirements of the 1996
amendments. Historically, FOIA has been crippled by two signifi-
cant problems: First, the lack of useful, comprehensive directories
of government records; and, second, the chronic delays in making
records available to the public.

The two most important provisions of the 1996 amendments seek
to overcome these problems by requiring agencies to make affirma-
tive disclosures. Instead of allowing agencies to passively wait for
a written requests for records, these affirmative disclosure provi-
sions require that the agencies create and publish information that
will make it easier to locate government records and make more
records instantly accessible to the public in electronic form.

Unfortunately, the promise of these affirmative disclosure provi-
sions has not been fully realized because many agencies have been
slow to implement them; and because the Clinton administration,
particularly the Office of Management and Budget, has not pro-
vided the leadership necessary to ensure full compliance.

First, the 1996 amendments mandate that agencies provide the
public with more information on what agencies hold and how it can
be obtained. Specifically, agencies are required to prepare and dis-
tribute handbooks to the public on how to request records from the
agency and to compile reference materials that contain an index of
the major information systems and a description of the major infor-
mation and locator systems maintained by the agency. Some agen-
cies have prepared excellent handbooks for the public that have
significantly improved public access. Many agencies, however, have
not done so.

For example, when Public Citizen requested a copy of the De-
partment of Education’s handbook at the end of 1997, the Depart-
ment’s FOIA officer responded by sending us a copy of the full com-
mittee’s publication, A Citizen’s Guide to Using the Freedom of In-
formation Act, a publication that was not prepared by the Depart-
ment of Education and does not describe the Department of Edu-
cation’s record holdings or procedures for requesting records.

Agencies have also ignored the mandate that they provide the
public with indices and descriptions of the major information sys-
tems or have prepared materials that are clearly incomplete. The
records of the U.S. Trade Representative illustrate this problem.


128

Although the Department has had fewer resources in the Headquarters Departmental
Admumistration Account, the FTE level for the FOIA Office has been sustained. At present.
staffing levels for the FOLA Office is at the maximum staff level for FY 99.

In FY 98, the Oak Ridge Operations Office and the Rocky Flats Field Office requested and
obtained additional staffing. In FY 99, additional personnel was granted to the Oak Ridge
Operations Office, however, a request by Rocky Flats was denied at the Operations Office level.


134

compare the FBI to the Department of Energy or—excuse me, Agri-
culture with Energy or one agency with another, or components
within an agency, and I think that should be very easy at that
time.

Mr. Horn. Who is in charge of getting that report?

Mr. HurF. The Office of Information and Privacy.

Mr. Horn. In other words, your office?

Mr. HurF. Our offices.

Mr. Horn. Within Justice?

Mr. Hurr. Yes, sir.

Mr. Horn. Is that being done at all throughout the executive
branch, or just in Justice, to your knowledge?

Mr. HurF. No, that is a requirement that the statute imposes on
all agencies and all agencies are required to submit it to the Attor-
ney General. In our guidance——

Mr. Horn. So you are going to followup to encourage that?

Mr. HurF. Encourage it, and say, exactly here are the data that
you are required to submit; here is additional data if you wish to
submit, you may; and here is where you are to send it and you are
to give us a website. If you don’t have a website, if you are a very
small agency, you should get in touch with us in advance and we
can work with you on that. I assume we are going to have just
links, probably in alphabetical order.

Mr. Horn. Have you already sent out the questionnaire or the
survey?

Mr. Hurr. Oh, yes. We did that, we were required by the statute
to submit it prior to October 1 of last year, and we did submit it
last summer to all of the agencies.

Mr. Horn. How many pages is that?

Mr. HurF. I think the particular portion on that guidance I be-
lieve is four pages long.

Mr. Horn. OK. Without objection, it will be put in the record at
this point.

Mr. Hurr. Yes. We have already submitted it to the staff. We
will submit another copy, if you would like.

Mr. Horn. Submit it for the record and we will put it right here.

Mr. Hurr. Certainly we will.

Mr. Horn. That is helpful.

[The information referred to follows:]


74

Federal agency, including the Department of Justice, is responsible
for implementing the FOIA and the provisions of EFOIA within it.
As you know, the Department of Justice also works to encourage
governmentwide compliance with the FOIA in accordance with sub-
section (e) of the act, and it has taken a number of steps to aid
other agencies in the implementation of EFOIA.

First, upon enactment of EFOIA, the Department disseminated
to all agencies, through our FOIA Update Publication, detailed dis-
cussions of the new statutory provisions and a chart outlining the
different effective dates of those provisions. In discussing both the
substantive and procedural aspects of EFOIA’s implementation, we
strongly encouraged all agencies to develop websites in order to
most efficiently meet EFOIA’s new electronic availability require-
ments.

Second, we have addressed a variety of questions about the pro-
visions of EFOIA and their implementation as they have been
raised by ,agenc FOIA personnel. We have done so through the De-
partment’s F' counselor service, through written guidance on
more than Fi dozen amendment questions in the FOIA Update,
and through governmentwide training sessions on the amend-
ments, including a conference for principal agency FOIA officers to
review EFOIA implementation questions.

Third, we issued guidance to all Federal agencies on the prepara-
tion and submission of annual FOIA reports under the new proce-
dures established by EFOIA.

On a governmentwide basis, there appears to have been little or
no significant disputes arising between agencies and FOIA request-
ers regarding the new choice of format, electronic search, or expe-
dited processing obligations that the amendments place on agen-
cies. To be sure, though, it has been observed that many agencies
have had a more difficult time in their websites implementing the
electronic availability provisions of EFOIA. This is an area of FOIA
administration that is relatively unfamiliar to Federal agencies,
and the process of individual a; agency website development for the
most efficient implementation of FOIA’s electronic availability pro-
visions is a continuing one.

The Department will continue to urge all Federal agencies to
focus on the importance of their efforts in this and other areas of
EFOIA implementation.

In conclusion, the Department of Justice looks forward to con-
tinuing to work together with the subcommittee on matters per-
taining to the implementation of the Freedom of Information Act,
and I would be pleased to try to answer any questions that you or
any other member of the subcommittee may have on this subject.

Mr. Horn. Thank you, Mr. Huff. That is very helpful.

[The prepared statement of Mr. Huff follows:]


32

ATTACHMENT A
Testimony of Michael E Tankersley
‘on Implementation of EFOIA
June 8, 1998

September 8, 1997

Franklin D. Raines

Director

Executive Office of the President

Office of Management and Budget

New Executive Office Building, Room 9026
725 17th Street, NW

Washington, D.C. 20503

Sally Katzen
Administrator

Office of Information and Regulatory Affairs
Office of Management and Budget
Executive Office of the President

New Executive Office Building, Room 9026
725 17th Street, NW

Washington, D.C. 20503

Re: OMB Memorandum M-97-i0, Guidance on Developing a Handbook

for Individuals Seeking Access to Public Information

Dear Mr. Raines and Ms. Katzen:

We are writing to request that the Office of Management and Budget immediately rescind
Memorandum M-97-10 because it is encouraging agencies to not fully comply with their
obligations under the Electronic Freedom of Information Act Amendments of 1996.

In order to aid the public in requesting access to agency records, the Electronic Freedom
of Information Act Amendments mandate that agencies provide an index and description of their
major information systems, and a description of their record locator systems. 5 U.S.C. § 552(g).
The statute requires that agencies make these finding aids available to the public by March 31,
1997, and amendments to Section 552(a)(2) require that the agencies also place these aids online
by no later than November 1, 1997.

Memorandum M-97-10 advises agencies that this mandate can be satisfied by establishing.
a “Government Information Locator Service (GILS) presence” as described in OMB Bulletin 95-
01. This advice is erroneous, OMB Bulletin 95-01 covers only a small subset of the major
information systems that are subject to the FOIA and that must be indexed and described to
comply with the 1996 Amendments. As a result, the Memorandum is crippling the public's ability
to obtain access to agency records under the FOIA. The 1996 FOIA Amendments were designed
to make clear that agency records in all formats are subject to public access under that statute,


103

Mr. Horn. Well, thank you very much. I appreciate that.

Mr. Abel Lopez is the Acting Director, Freedom of Information
Division, Department of Energy. Glad to have you with us.

Mr. Lopez. Pleased to be here, Mr. Chairman. I’m here to discuss
the Department of Energy’s progress in implementing the Elec-
tronic Freedom of Information Act Amendments of 1996.

Following the President’s call upon all Federal agencies and de-
partments to renew their commitment to the Freedom of Informa-
tion Act, the Department aggressively sought ways to improve its
responsiveness to requesters under that act and to support the un-
derlying principles of openness in government.

Since 1993, the Department has made significant changes to in-
crease the direct availability of information on its past and current
operations to the public without imposing a burden on its stake-
holders to go through the FOIA process.

In July 1996, the Openness Advisory Panel was convened by the
Secretary of Energy to assess the Department’s progress, and it
made recommendations for additional improvements toward its
goal of responsible openness. The panel’s recommendations focused
on three general areas: the classification and declassification proc-
esses; improving the availability of information; and changing the
culture of secrecy.

While all three of these areas are important, the one most di-
rectly related to the FOIA program is improving public accessibility
to information. For example, one of the panel’s recommendations
on improving accessibility included continuation of the development.
and dissemination of finding aids. In response, the Department is
enhancing public access to its information and records in a number
of ways, including the redesign of its web home page to provide bet-
ter pointers to its online document sources and identifying the fea-
sibility of putting existing hard copy finding aids on the internet.

This commitment to openness has resulted in dramatic improve-
ments in the Freedom of Information Act Program. In 1994, our
backlog at headquarters was 658 pending cases, a substantial num-
ber of which predated 1990. In addition, we could not rely on our
data concerning median case processing times and average case
age. Our delivery system was so sluggish that requesters some-
times gave up expecting that a response would ever be made.

The situation has been reversed. Now we can accurately report
a reduction of more than one-third in the size of the headquarters
cases that are in the backlog. We can also report the elimination
of all except four requests in the pre-1990 backlog and close to the
elimination of the 1990 to 1992 backlog. Many of those requests in-
volved classified information and information that is being re-
viewed by other agencies.

These improvements reflect a change in attitude toward our obli-
gations to the public to be responsive and efficient. We believe
these improvements demonstrate our commitment to openness and
to the Freedom of Information Act.

The Department’s implementation of the EFOIA amendments re-
quirements is an integral part of the Department’s plans for contin-
ued and enhanced openness. While much has been accomplished in
terms of making records available to the public online in electronic
format, challenges remain to improve the system. The Department


39

ay

Buyers Up * Congress Watch * Critical Mass* Global Trade Watch * Health Research Group * Ligation Group
Joan Claybrook, President

Statement of James Riccio
Staff Attorney
Public Citizen’s Critical Mass Energy Project

Before the
Committee on Government Reform and Oversight
Subcommittee on Government Management, Information aud Technology

June 9, 1998

Good Morning Mr. Chairman and members of the Subcommittee. Thank you for
inviting Public Citizen's Critical Mass Energy Project to testify regarding the
implementation of the Electronic Freedom of Information Amendments of 1996.

Public Citizen is a non-profit, non-partisan organization founded in 1971 by
Ralph Nader to safeguard the public health and safety. Public Citizen's Critical Mass
Energy Project was founded in 1974. Since then, Critical Mass has been a strong voice
for a more rational energy policy, a phase-out of nuclear reactors and a move toward
cleaner, safer and more renewable sources of energy. We have been a forceful critic of
the Nuclear Regulatory Commission and the nuclear industry both here on Capitol Hill
and through out the country. Through our research, reports and publications we seek to
inform the public so that they may better participate in the government decisions that
effect their future. Public Citizen’s Critical Mass Energy Project works hundreds of
grassroots activists around the country to help better regulate the nuclear industry and the
radioactive wastes they produce.

The Subcommittee has asked that Public Citizen address the importance of the
Electronic Freedom of Information Amendments of 1996 or “EFOIA” for research. One
of the key provisions of the 1996 Amendments was to broadened public access to
government information by placing it on-line. This provision has resulted ia a substantial
increase in the amount-and timeliness of information that is readily available to members
of the public.

This is important because meaningful public participation can only occur when
there is timely access to information. In meeting the mandate of the Electronic Freedom
of Information Amendments of 1996, the U.S. Nuclear Regulatory Commission has
improved both the timeliness and accessibility of information.

Ralph Nader, Founder
215 Pennsylvania Ave SE * Washington, DC 20003 * (202) 546-4996 * www citizen.org


64

interests. In its brief, the government claimed, 1n a footnote,
that because McNamara had argued that his complaint would meet
the Reporters Committee standard, he could not also claim that
the finding in the Electronic FOI Act negated the 1989 ruling.
The agency called his assertions “questionable in substance” but
said that they were irrelevant to this case regardless of their
accuracy.”

The judge did not respond to McNamara's claim that the
finding in the new Act and the legislative history behind it
changed the balancing test, stating only that the public interest
cited by McNamara fell outside the “core purpose” articulated in
Reporters Committee. (McNamara _v. Department of Justice, 974 F.
Supp. 946 (W.D. Tex.1997)

Florida immigration attorney Michael O'Kane also invoked the
new finding in his lawsuit seeking access to names and addresses
of individuals whose property had been seized by the U.S. Customs
Service. He intended to use the information to solicit clients.
He told the federal District Court in Miami that there is a
strong public interest in apprising persons of their right to
legal counsel, an interest that could be served in part by

directing attorney advertising to them. That public interest.

would outweigh the fairly minimal intrusion that would occur from
the disclosure of addresses, he said.
The government‘s response to O'Kane’s Cross Motion for

Summary Judgment addressed the finding at length, suggesting that


148

U.S. Department of Justice
Office of Legislative Affairs

Office ofthe ASsisum Attorney General Washington, DIC. 20830

October 19, 1998

The Honorable Stephen Horn

Chairman

Subcommittee on Government Management,
Information, and Technology

Committee on Government Reform and Oversight

U.S. House of Representatives

Washington, D.C. 20515

Dear Mr. Chairman:

During your Subcommittee's hearing on June 9, 1998,
concerning implementation of the Electronic Freedom of
Information Amendments of 1996, both you and Congressman Sununu
asked Mr. Richard Huff, Co-Director of the Office of Information
and Privacy, Department of Justice, how many information systems
in the Department of Justice are required to be indexed,
described and published under the provisions of the Electronic
Freedom of Information Act Amendments of 1996, 5 U.S.C. § 552(g)
(E-FOIA). Mr. Huff indicated that he would inquire and provide
that information to the Subcommittee. Although the precise
number of affected information systems is not yet known, this
response is provided to complete the hearing record and to
provide additional information concerning the efforts currently
underway within the Department of Justice to determine that
number and to comply fully with the E-FOIA requirements.

In June of 1998, the Management and Planning Staff within
the Justice Management Division (JMD) of the Department of
Justice (DOJ), assembled a small task force of DOJ employees to
review the Department's compliance with the requirements cf
Section 11 of the Electronic Freedom of Information Act
Amendments of 1996, 5 U.S.C. § 552(g). Specifically, the task
force was assigned responsibility for coordinating the
compilation, description and indexing of "major information
systems" within the Department. Once completed, the task force
was also assigned responsibility for ensuring that the required
information was published on the Internet.

After performing the requisite background research, the task
force, together with JMD management, developed a three-step
strategy to ensure full DOJ compliance with the indexing,
description, and publication requirements of the E-FOIA. First,
the task force would work with two pilot components (the Federal
Bureau of Investigation and the Antitrust Division) to define,


35

Franklin D Raines, Sally Katzen
September 8, 1997
Page 4

Finally, a third problem with OMB's decision to advise agencies that the FOIA
Amendments require nothing more than a “GILS presence” under Bulletin 95-01 is that many
agencies have disregarded the Bulletin and have never established even a minimal GILS presence.

For example, the Department of Justice, which receives more FOIA requests than any
other agency, provides no GILS Core locator records to the public — even though Bulletin 95-01
required it to do so more than nineteen months ago. A FOIA requester looking to GILS for
guidance on the records systems of the Department of Education or Department of
‘Transportation would be similarly disappointed and frustrated because neither of these Cabinet
agencies has established a GILS presence.

‘The Executive Office of the President has set a particularly bad example by largely
disregarding OMB’s instructions on GILS. For instance, although the enclosed records schedule
shows that the Office of the United States Trade Representative has numerous information
systems with automated and paper records on trade policy and initiatives that are of interest to the
public, the Trade Representative has not provided any GILS entries describing these information
systems. Indeed, even the President’s Office of Science and Technology Policy has ignored
‘OMB's Bulletin on GILS. The study of GILS recently issued by Moen and McClure concludes
that this situation is not likely to improve. Even those agencies that have established a minimum
GILS presence are not likely to add to or update their records under the GILS initiative, as it is
currently being carried out.?

The failures of agencies to implement the GILS initiative are, in no small measure, due to
OMB's lack of leadership.‘ The 1996 FOIA Amendments, which mandate that agencies provide
indexes and descriptions of their locator systems, should not suffer from the same fate. Congress
contemplated that OMB would play a leadership role in implementing this provision by assisting

“agencies in assuring that all guides follow a common format so that a requestor picking up
guides from two or more agencies can easily find the information they are seeking,” and by
assuring “that all agencies use common terminology in describing record systems, how to file a
FOIA request, and in describing other locator systems.” H. Rep. No. 795, supra at 30. So far,
however, OMB has abdicated this role. OMB has not provided agencies with guidance on the
format of the guides and reference materials required by 5 U.S.C. § $52(g), and the advice that
OMB has provided in Memorandum M-97-10 has only served to frustrate implementation of this
provision.

> Moen & McClure, An Evaluation of U.S. GILS Implementation at 61-62 (June 30,
1997).

* See, id, at 66-67, and OMB Watch, Potholes on the Information Bridge to the 2st
Century at 12-16 (January 1997)


67

addressing the privacy exemption or, after 1974, the law

enforcement privacy exemption

In Reporters Committee, the Supreme Court without any

suggestion from Congress or the Executive Branch, gave a new and
crabbed interpretation of Congress’ purpose in enacting the FOI
Act, one that has critically impaired the ability of requesters

to receive government information.

It is notable that in Congress’ first legislative amendment
to the For Act following that decision, it tried to set the
record straight: it simply had not intended what the Supreme
Court said it had intended.

The government has argued that on such an important
"change," Congress cannot just say what it meant, it must instead
amend the language of the privacy exemptions. We do not believe
that should be necessary. Congress said what it meant, in 1966
and in 1998 said that it meant what it said. The Court had read

it wrong, Congress said. That should be enough.

10


104

1s firmly committed to the implementation of the act in order to
better serve the American public and our shared objectives of open-
ness in government.

As you know, the EFOIA requires the Department to have imple-
mented certain changes to the public reading rooms to make infor-
mation more accessible. We have done so.

With respect to the requirement for reading room treatment of
Freedom of Information Act disclosures that are likely to become
the subject of subsequent inquiries, we are making these records
available in those reading rooms. At headquarters these are avail-
able electronically within those reading rooms.

With respect to the requirement that records be provided in the
formal format requested if readily reproducible in such a format,
such as electronic, this has been the Department’s procedure for 8
years.

With respect to the requirement that we make reasonable efforts
to search for the records in electronic form or format, we currently
utilize all available sources to identify and search for responsive
records, including electronic data bases.

With respect to the requirement that the Department indicate on
records the amount of information deleted, FOIA personnel have
been instructed to follow this procedure and the FOIA office en-
sures that its cases adhere to that procedure as well.

With respect to the requirement that reading room records cre-
ated on or after November 1, 1997, be made available by electronic
means, at Department headquarters; we have processed these
records into an imaging system that can be accessed in the reading
room, and this is the first step to placing these records online.

We have also adhered to the provisions of the EFOIA relating to
the time limit for responses, provisions permitting extensions of
time, and multitrack processing of requests. Based on the amount
of time to process, we have made reasonable efforts to estimate the
volume of entire records or entire pages of information that have
been denied to a requester. We also have made improvements to
certain other procedural matters such as management of cases, but
more needs to be done.

Apart from our progress in implementing the EFOIA and our
plans to fulfill requirements that have not yet come due, more
work remains to achieve our broader objective of responsible open-
ness.

We intend to promulgate regulations that provide for multitrack
processing of requests based on the amount of work or time in-
volved to process those cases, and to implement regulations that
provide for expedited processing of requests that demonstrate a
compelling need. These are important activities and we plan to
have final regulations promulgated by the end of 1998.

Additionally, the Department’s Freedom of Information Act Of-
fice, working with the Department’s Office of Information Manage-
ment, in working to develop a corporatewide information system
that will fully automate the FOIA process and network our head-
quarters and field sites. However, we must still solve technical and
system problems to provide the capacity to post those reading
rooms records on the internet.


126

Ms. RIEP-DICE. It’s the facilities We have a FOIA office in each
one of our NASA centers, and they’re located in Texas and Florida.

Mr. Horn. Cape Canaveral, Texas, and so forth?

Ms. RiEpP-DICE. Yes.

Mr. Horn. How about Energy? What’s your budget picture?

Mr. Lopez. Well, we have remained constant for the last 3 or 4
fiscal years. We have not had an increase. We have nine employees
within the FOIA office, and we do not control that—the budget
amount. It’s just a part of a larger budget request for the Office of
Human Resources and Administration.

Mr. Horn. But you presumably give the head of that office what
you need?

Mr. Lopez. Yes.

Mr. Horn. Have they supported you?

Mr. Lopez. Yes, the office has directly been supported, it’s just
been in the larger budget issues of the department.

Mr. Horn. And has your request survived the Secretary’s level?

Mr. Lopez. Yes.

Mr. Horn. And how about OMB?

Mr. Lopez. They have, as I said, because they’ve been constant.
So we had the support we needed, not enough, but it has been
what we requested.

Mr. Horn. In other words, you requested, you got nine FTEs
over there now?

Mr. Lopez. Right.

Mr. Horn. Is that the total Department, how many FTEs?

Mr. Lopez. No, that—I do not have that exact figure because
that—again, like NASA we have field offices, and they vary from
field office to field office, but I will provide it for the record.

Mr. Horn. We will leave a space in the record, and without ob-
jection, it will be included. Your total FTEs, where they are, and
so forth; and also, did you ask for more, and what did the Sec-
retary’s office do with that, what did OMB do with it, and what did
Congress do with it? That will be the question to be answered here.

[The information referred to follows:


45

SUMMARY OF TESTIMONY
BY JANE E. KIRTLEY, EXECUTIVE DIRECTOR
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
BEFORE
THE HOUSE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION AND TECHNOLOGY

June 9, 1998

The Reporters Committee for Freedom of the Press welcomes
this subcommittee’s interest in the status of the Electronic
Freedom of Information Act. We view federal agencies’ response
to the Act’s requirements as slow. Many agencies have not yet
adopted implementing regulations, much less the electronic
reading rooms and other reforms required by the Act.

‘The Act has nonetheless caused some positive change to
promote government openness: It has made clear that electronic
records are subject to the Freedom of Information Act. It has
eliminated questions about whether agencies must conduct
electronic searches. It has spelled out definitively that
requesters may choose to receive records in an electronic format
if the agency maintains them in that format or can easily produce
them in that form.

We see from the early innovators in government FOI offices
that there is great promise for what agencies can do. They can
put useful information up on government Websites. We are
especially impressed that some agencies provide FOI request
letter generators on their Websites.

Likewise we see promise in the expedited review provisions
although we have been disappointed that they are not yet fully
operational.

Our greatest disappointment in the Act has been the refusal
of the Executive Branch and the Courts to recognize the Act’s
first finding, that the FOI Act is meant to permit responses to
requests that serve any purpose, not just the public’s interest
in government operations and activities.


87

CHAIRMAN HORN AND MEMBERS OF THE
SUBCOMMITTEE, I GREATLY APPRECIATE THE
OPPORTUNITY TO APPEAR HERE TODAY. I LOOK FORWARD
TO DISCUSSING THE FBI’S EFFORTS TO BE MORE
RESPONSIVE TO THE PUBLIC AND OUR MANY REQUESTORS
SEEKING INFORMATION PURSUANT TO THE FREEDOM OF
INFORMATION AND PRIVACY ACTS--AND TO DISCUSSING
OUR PROGRESS IN IMPLEMENTING EFOIA. THIS IS MY
FIRST OPPORTUNITY TO APPEAR BEFORE YOU ON WHAT
WE BELIEVE IS AN ISSUE THAT ULTIMATELY IS IMPORTANT
TO OUR ABILITY TO EFFECTIVELY INVESTIGATE CRIME. I
NOTE IT HAS BEEN ALMOST TWO YEARS SINCE THE FBI

LAST APPEARED BEFORE THIS PANEL.

SINCE WE WERE LAST HERE, MR. CHAIRMAN, THE FBI
HAS MADE SIGNIFICANT STRIDES IN BECOMING MORE

RESPONSIVE TO THE PUBLIC BY REDUCING AN

1


NUE, NORT’ ‘EST

1, DC. 20009-1171
\@ ombwatch org
URL: http://www ombwatch org/ombwatch htm!

‘TELEPHONE: (202) 234-8494/FAX (202) 234-8684

e-mail: ombwatchi

1742 CONNECTICUT AVE!

WASHINGTON,

OMB WATCH

Before the Subcommuttee on Government Management, Information and Technology
of the

House Commuttee on Government Reform and Oversight
On
‘The Implementation of the Electronic Freedom of Information Amendments of 1996

‘My name is Patrice McDermott and 1 am the information policy analyst for OMB Watch, 2
‘nonprofit research and advocacy organization that works to encourage greater public participation
in federal government decision-making and to promote a more open, responsive and accountable
‘government. We have been engaged in the arena of public access to public information since the
late 1980s, and have issued a number of reports in this area. Pursuant to your request, Mr,
Chairman, OMB Watch has not received any federal grants or contracts in the current and two
preceding years, nor are we representing any entity today that has received such funds.

‘We appreciate the opportunity to testify.

am here today to talk about the report we issued in April ofthis year — Arming the People
ith the power knowledge gives.” The name of our report may sound somewhat i
but comes from a famous quotation fom lames Madison, the fist par of wtchs beter known:
‘Government without popular information or the means of acquiring it, is but a

Prologue to a Furoor a Tragaty or perhaps bot. Knowltge wl fers goto iguce anda
people who mean to be their own Governors, must arm themselves with the power knowledge
gives.” We believe it was the intent of Congress, withthe 1996 “EFOLA” amendments to the
Freedom of Information Act, to assist the American people in arming themselves with the power of
Jmowledge about the activities of their government,

Before I go into the details of our study and our recommendations, I want to clarify that OMB
Watch conducted this study from our commitment to the public’s right to know, its right 0
information needed to make informed personal, social and political decisions, and our belief that
the government has an affirmative responsibility to make information available and readily
accessible to all the public. It was not, and is not, our intent to “bash” federal government agencies;
itis our intent to hold them accountable to statutory mandates for meaningful public access to the
information created, collected, and or maintained by or for those agencies,

‘The OMB Watch Study
‘I want to recognize the work of Jennifer J. Henderson in researching and doing the majority of the
writing of this study and report. Over a three month period between Novernber 1, 1997 and
January 31, 1998 (mostly between November | and December 31, 1997), OMB Watch examined
135 unique federal government EFOIA web sites. Some EFOIA web sites represented entire
agencies, while others reflected an agency division or department. The agencies, departments,


IMPLEMENTATION OF THE ELECTRONIC
FREEDOM OF INFORMATION AMENDMENTS
OF 1996: IS ACCESS TO GOVERNMENT IN-
FORMATION IMPROVING?

TUESDAY, JUNE 9, 1998

HOoUuSE OF REPRESENTATIVES,
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room
2247, Rayburn House Office Building, Hon. Stephen Horn (chair-
man of the subcommittee) presiding.

Present: Representatives Horn, Sununu, and Kucinich.

Staff present: J. Russell George, staff director and chief counsel;
John Hynes, professional staff member; Matthew Ebert, clerk; and
Brian Cohen, minority professional staff member.

Mr. Horn. The Subcommittee on Government Management, In-
formation, and Technology will come to order.

This hearing is about access to government information. James
Madison articulated the importance of this issue in a statement
that deserves all the attention it will receive here today.

He said, “A popular Government without popular information or
the means of acquiring it is but a Prologue to a Farce or a Tragedy,
or perhaps both. Knowledge will forever govern ignorance, and a
people who mean to be the Governors, must arm themselves with
the power knowledge gives.”

Our purpose is to give content to the timeless wisdom of these
words as we stand at the threshold of a new era. The framework
for our efforts is the Freedom of Information Act of 1966, commonly
called FOIA. Two years ago, Congress amended the Freedom of In-
formation Act to make it more effective for the digital age. At this
hearing, we intend to ask whether the executive branch today is
living up to Mr. Madison’s eloquent vision.

Specifically, we are here to examine the implementation of the
Electronic Freedom of Information Act Amendments of 1996. The
purpose of the 1996 amendments, and the Freedom of Information
Act more fenerally, is to promote open, accessible government. De-
mocracy depends on access to government information. Participa-
tion in government by private citizens and accountability of govern-
mental officials are two pillars of representative government. These
functions of participation and oversight by the public are just as

(D


150

The Honorable Stephen Horn
Page 3

same manner. The estimated completion date by which the
Department expects to have all of its major information systems
identified, indexed, described and published on the Internet is
March 31, 1999.

I trust this information is responsive to the questions
raised at the hearing. If you would like additional information
on this or any other matter, please do not hesitate to contact
me.

/ : —_—

! L. Anthony Sut/n
Acting Assistnt Attorney General

ce: The Honorable Carolyn B. Maloney
Ranking Minority Member


42

Mr Horn. Ms Jane Kirtley, executive director, Reporters Com-
mittee for Freedom of the Press. Thank you for being here again.

Ms. KirTLEY. Thank you, Mr. Chairman. It is a pleasure to be
here. We know that this subcommittee has been our ally in trying
to get EFOIA to become a reality, and we are really delighted that
you are continuing to maintain your interest in how well it is being
implemented.

T would like to take a couple of minutes to talk about this statute
in terms of what it has promised and, to a certain extent, what it
has delivered. To a certain extent, we are disappointed because a
lot of Federal agencies, as the previous panelists have pointed out,
have missed their deadlines for compliance with the act in much
the same way that they have been missing FOI deadlines for many
decades.

To start at the most fundamental level, they still don’t, for the
most part, have implementing regulations. The DOJ guidance only
became final at the end of last month, after a lengthy clearance
process at OMB, and so many of the agencies have not even issued
their proposed regulations at this time. Most of them have not yet
established the electronic reading rooms that we had all antici-
pated, and those that do exist are often, although not always, infor-
mation poor.

From a journalist’s perspective, we look at backlogs as still being
a continuing and seemingly intractable problem. The new 20-day
time limit, which was supposed to be meaningful, we were told, un-
like the 10-day time limit, that really hasn’t happened. The only
difference for most of the journalists we talk to now is that the
agencies now say they can’t get the records to requesters in 20
days, as opposed to 10 days.

Having said those negative things, I would have to also say that
it is not all business as usual. There have been some important
changes, and we hope that they will become more widespread. We
have seen some of the agency FOI officers who have really become
quite enthusiastic about filling up their web pages with useful in-
formation, and they have been working with their colleagues in in-
formation resources to get the electronic information online and ac-
cessible.

A couple of agencies that we have heard praise of from a number
of reporters include the Department of Transportation and EPA.
These are two agencies that have good track records for dissemi-
nating information, and their sites are being heavily used by jour-
nalists.

One of our reporter colleagues said that the reverse is often true
and that those agencies that don’t have a great track record his-
torically aren’t doing really well now either, which I guess proves
the point that there is a certain amount of resistance in this area
that seems to be endemic.

In terms of FOI processing, some agencies, although not all of
them, have adopted the multitrack processing option, and journal-
ists are excited about not only the fact that it exists but that agen-
cies are actually working with them to help them tailor their re-
quests so that they can move into the quick-processing track. Time,
of course, is always of the essence for any requester, but especially
for journalists.


73

Collingwood, Assistant Director, Office of Public and Congressional
Affairs, FBI; Ms. Patricia Riep-Dice, Freedom of Information Offi-
cer, NASA; and Mr. Abel Lopez, Acting Director, Freedom of Infor-
mation Division, Department of Energy.

If the panel would please come forward and be sworn.

[Witnesses sworn.]

Mr. Horn. The clerk will note all four witnesses affirmed.

We will begin with Mr. Huff, who, as I noted, is the Codirector,
Office of Information and Privacy, Department of Justice. Welcome.

STATEMENTS OF RICHARD L. HUFF, CODIRECTOR, OFFICE OF
INFORMATION AND PRIVACY, DEPARTMENT OF JUSTICE;
JOHN E. COLLINGWOOD, ASSISTANT DIRECTOR, OFFICE OF
PUBLIC AND CONGRESSIONAL AFFAIRS, FEDERAL BUREAU
OF INVESTIGATION; PATRICIA M. RIEP-DICE, FREEDOM OF
INFORMATION OFFICER, NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION; AND ABEL LOPEZ, ACTING DIREC-
TOR, FREEDOM OF INFORMATION DIVISION, DEPARTMENT
OF ENERGY

Mr. Hurr. Thank you. I am pleased to be here this morning to
address the subject of the Freedom of Information Act, as amended
by the Electronic Freedom of Information Act Amendments of 1996,
which is the principal statute governing public access to Federal
Government records and information.

Under the Attorney General’s leadership, we have worked dili-
gently to implement EFOIA and to reduce FOIA backlogs within
the Department of Justice. We have revised our FOJA and Privacy
Act regulations, we have prepared a FOIA reference guide, a man-
ual that provides helpful information to the public regarding avail-
able resources and specific procedures for making FOIA requests to
the Department. This reference document is available electronically
on the Department of Justice’s FOIA home page.

Our FOIA home page, which can be accessed directly from the
Department’s home page by hitting the FOIA button, contains re-
search tools, a listing of FOIA contacts for all Federal agencies, a
direct link to the electronic FOIA sites of other Federal agencies,
a listing of the principal FOIA contacts of the Department’s compo-
nents, and a direct link to the components’ electronic reading
rooms.

In these electronic reading rooms, for example, one can electroni-
cally browse traditional reading room materials such as the U.S.
attorneys’ manual and bulletins, infrequently requested records,
such as the Americans with Disabilities Act settlement agreements.

In pursuit of EFOIA’s goal of reducing backlogs of pending re-
quests, the Department has made significant progress. Most signifi-
cant is the progress made by the Federal Bureau of Investigation
in reducing its large backlog of FOIA requests, which is being dis-
cussed by a representative of the FBI here this morning. I want to
emphasize that other components of the Department, such as the
DEA, the Bureau of Prisons, the Executive Office for U.S. Attor-
neys, and the Marshals Service, have also greatly reduced their
backlogs.

Because the administration of the Freedom of Information Act is
decentralized throughout the executive branch, each individual


82

wath FOIA reading rooms, including electronic reading rooms. on
the subject of electronic reading rooms, we have also discussed
the development of agency web sites in FOIA Update, pointing to

good examples of agency web sites for FOIA purposes.

Third, we issued guidance to all Federal agencies on
the preparation and submission of annual FOIA reports under new
procedures established by EFOIA. These guidelines, which were
developed in consultation with the Office of Management and
Budget and disseminated to all Federal agencies prior to the
beginning of this fiscal year, provide a uniform approach for all
agencies to follow in the compilation and organization of
statistics and other information in their annual FOIA reports.
They also address the process by which agencies will submit their
annual reports to the Department of Justice for public
availability through a single web site as of February of next

year.

On a governmentwide basis, there appear to have been
little or no significant disputes arising between agencies and
FOIA requesters regarding the new choice-of-format obligations

that the amendments place on agencies. This is likewise so with


IMPLEMENTATION OF THE ELECTRONIC FREEDOM
OF INFORMATION AMENDMENTS OF 1996: IS
ACCESS TO GOVERNMENT INFORMATION IM-
PROVING?

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY

OF THE

COMMITTEE ON
GOVERNMENT REFORM
AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS
SECOND SESSION

JUNE 9, 1998

Serial No. 105-197

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

oe

U.S, GOVERNMENT PRINTING OFFICE
54-565, WASHINGTON ; 1999

For sale by the U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328

3 ISBN 0-16-058402-7
SPO,



108

of all except four requests in the pre-1990 backlog and close to the elmmnation of the 1990-92
‘backlog. Many of these requests involved classified information and information that is being

reviewed by other agencies,

‘These improvements reflect a change in attitude toward our obligations to the public to be
responsive and efficient. We also believe these improvements demonstrate our commitment to

‘openness and to the Freedom of Information Act.

‘The Department's implementation of the Electronic Freedom of Information Act Amendements of
1996 requirements is an integral part of the Department's plans for continued and enhanced
‘openness to the public. While much has been accomplished in terms of making records available
to the public on-line in electronic format, challenges remain to improve the system. The
Department is firmly committed to implementation of the Electronic Freedom of Information Act
‘Amendments in order to better serve the American public and our shared objectives of openness

in government,

Progress To Date

As you know, the Electronic Freedom of Information Act Amendments require the Department
of Energy to have implemented certain changes to the Public Reading Rooms to make

information more accessible to the public. We have done so.

«With respect to the requirment for Reading Room treatment of

Freedom of Information Act disclosures that are likely to become the subject of


131

Mr. Hurr. If I may, that was a request for information as a
Member rather than a FOIA request? Please give me copies of doc-
uments you have?

Mr. Kucinicu. No, but that’s a good idea, too.

Mr. HurF. Well, in terms of the Freedom of Information Act——

Mr. Kucinicu. Now I know how to do it, I got it back here, I just
read it.

Mr. Horn. The secret is you have to bring it up in a hearing, you
see. That’s why I finally got Mr. Collingwood aware of a file that
I was after for several years, and it was finally transmitted, and
I said, “I’m going to call a hearing on it, folks,” and I meant it.

Mr. KucINicH. When I first submitted the letter, I wasn’t the
ranking member of this committee. Now that I am, I don’t know
what that means. If it means anything at all, I would like an an-
swer.

Mr. Horn. It does not mean a free cup of coffee in the House din-
ing room.

Mr. Kucinicu. Thank you, Mr. Horn, and thank you for your
work on helping to open up information from the government.
Thank you.

Mr. Horn. Well, we always appreciate your questioning. You get
right to the heart of the matter.

will be right behind him.

Now, let me ask a few questions on some other areas that have
come up, and that is the backlog situation in a few agencies. I real-
ize you can’t speak for any agency but your own, and I understand
that, but I am hoping to learn from your experience as to what we
might do and find out on surveys, or we could at least ask a decent
question on the survey, maybe working in cooperation as we do on
the year 2000 with the Office of Management and Budget.

I guess I would just ask this for the record. You might have said
it already, but I want to find it in one place when I am after it,
and that is, how many FOIA requests do you currently have pend-
ing? Let us just go down the line. Do you have any in your office,
or is it simply advisory to the offices that do have it?

Mr. HuFF. My office also processes initial requests for the leader-
ship offices of the Department of Justice.

Mr. Horn. If you want something from the Attorney General
such as a memorandum that she might have had, does your office
deal with that?

Mr. Hurr. That is correct. I don’t know the number right now.

Mr. Horn. Is it 100,000, 200,000? Ball park?

Mr. Hurr. I would imagine we have a total of perhaps 200 to 300
pending.

Mr. Horn. OK. FBI, how many pending?

Mr. CoLLInGwoop. Our current backlog is 11,889.

Mr. Horn. OK. Gee, it hasn’t changed.

Ms. Riep-Dice, what about NASA?

Ms. Riep-Dice. I don’t have an exact figure, but I would assume
it is somewhere between 50 to 100, and that would be somewhere
in the timeframe of 20 to 40 days. We have very few that would
be over 40 days.

Mr. Horn. Mr. Lopez, what is Energy’s situation?

Mr. Lopez. Four hundred and nineteen.




109

subsequent inquines, we are making these records available in the Public Reading Rooms
At Headquarters, these are available electronically

With respect to the requirement that records be provided in any form or format
requested if readily reproducible in such a format, such as an electronic format, this has
been Department of Energy procedure for eight years

With respect to the requirement that we make reasonable efforts to search for the
records in electronic form or format, we currently utilize all available sources to identify
and search for responsive records, including electronic databases.

With respect to the requirement that the Department indicate on records the

amount of any information deleted, Freedom of Information Act personnel have been
instructed to follow this procedure and the Freedom of Information Act Office ensures
that its cases adhere to the procedure.

With respect to the requirement that Reading Room records created on or after
Noveriber 1, 1997 be made available by electronic means, at Department Headquarters,
we have processed these records into an electronic imaging system that can be accessed
in the Public Reading Room

We have also adhered to the provisions in the FOIA Amendments relating to the time
limit for responses, provisions permitting extensions of time, and multi-track

processing of requests. Based on the amount of time necessary to process, we have made
reasonable efforts to estimate the volume of entire records or entire pages of
information that have been denied to a requester, and we have made improvements to

certain other procedural matters such as the management of cases.


30

agency ° The Department's position, however, represents a major threat to full implementation
of the statute because it encourages agencies not to make repeatedly requested records available
on-line if the records were generated by other agencies, government contractors, or private
entities.

Finally, even with respect to records that are created by agencies, full implementation of
the on-line access requirements requires that agencies adopt better procedures for managing and
preserving their electronic records. Five years ago, the full Committee observed that "[vJirtually
all material that are printed today exist at some point in an electronic format that could also be
‘used to support dissemination using other technologies." Committee on Government Operations,
National Historical Publications and Records Commission Authorization, H.R. Rep. No. 215,
103d Cong., Ist Sess. 5 (1993). The 1996 Amendments to the Freedom of Information Act build
on this observation by requiring agencies to make records generated on word processing systems,
electronic mail networks, and database applications available on-line if the records are repeatedly
requested under the FOIA. But if agencies manage and preserve these records only on paper, it
will be more cumbersome and costly for the government to make them available to the public in

Electronic Reading Rooms.

* See Department of Defense Regulations, 62 Fed. Reg. 35,357 (uly 1, 1997); Federal
Reserve Board Regulations, 62 Fed. Reg. 54,357 (Oct. 20, 1997); Postal Service Regulations,
63 Fed. Reg. 64809 (Feb. 9, 1998); AMTRAK Regulations, 63 Fed. Reg. 7312 (Feb. 13,
1998); Legal Services Corporation Regulations, 63 Fed. Reg. 11,394 (March 9, 1998);
National Credit Union Administration Regulations, 63 Fed, Reg. 14, 339 (March 25, 1998);
International Trade Commission Regulations, 63 Fed. Reg. 29,348 (May 29, 1998);
Department of Justice Regulations, 63 Fed. Reg. 29592 (June 1, 1998). The Department of
Defense has stated that it intends to amend its regulation, which would limit both paper and
electronic reading room records to records created by the agency, but, to date, has not
published any amendment.

13


89

THE RULE OF LAW.

IN LATE OCTOBER, 1996, WITH THE FULL SUPPORT OF
ATTORNEY GENERAL RENO AND THE CONSENT OF
CONGRESS, DIRECTOR FREEH MOVED THE FOIA FUNCTION
TO MY OFFICE. HE DID THIS TO RAISE THE PROFILE OF
THE FUNCTION WITHIN THE FBI AND TO PROVIDE FOR
GREATER EXECUTIVE INVOLVEMENT AND OVERSIGHT OF
THE FUNCTION. IN ADDITION, OUR APPROPRIATIONS
COMMITTEES AND ULTIMATELY CONGRESS IN FISCAL
YEAR 1997 PROVIDED ADDITIONAL RESOURCES.
ADDITIONAL RESOURCES WERE PROVIDED IN FY 1998. THE
MESSAGE FROM BOTH ATTORNEY GENERAL RENO AND
DIRECTOR FREEH AND FROM CONGRESS WAS CLEAR: THE
FBI MUST REVERSE THE DECADE-LONG TREND OF AN
INCREASING BACKLOG OF REQUESTS. I AM PLEASED TO

REPORT THAT WE HAVE DONE THAT BUT, AGAIN, WE

3


-10-

points of effective web site development for FOIA purposes and to
address any questions that agencies may have on this important
subject. The Department will urge all Federal agencies to focus
on the importance of their continued efforts in this and other

areas of BFOIA's implementation.

In conclusion, the Department of Justice looks forward
to continuing to work together with the Subcommittee on matters
pertaining to the implementation of the Freedom of Information
Act, and I would be pleased to try to answer any question that
you or any other Member of the Subcommittee may have on this

subject.


12

“mayor information systems” when in fact they are looking only at indexes of information the agency has
Chosen to post on its web site

Electronic Reading Rooms and “Repeatedly Requested” Records

Under EFOIA, online Electronic Reading Rooms should include final opinions from agency adjudications,
agency policy statements and interpretations adopted by the agency that are not published in the Federal
Register, a guide on how to request information, and an index of all major information systems. While
‘many electronic reading rooms exist, very few contain all of this information. Many contain a guide and/or
index of information systems, but only a handful contain repeatedly requested documents in addition to
these other items,

‘The Department of Interior (DOI) provides an excellent example of an agency that has met all EFOIA
requirements for an electronic reading room. In its reading room, DOI clearly identified each component,
“Frequently Requested FOIA Documents,” “Index to Frequently Requested Documents,” “

Policies and Procedures,” etc... Most importantly, each of the headings within this main outline contain
information — actual documents or records. While this may sound simplistic, the vast majority of web
sites examined have headings, an outline for the information, but contain no actual information, At the
DOI site, a researcher can find the documents explaining policies and procedures or final opinions and
adjudications, not just a heading describing them

‘The Nuclear Regulatory Commission (NRC) also went beyond the call of duty by using clear organization
‘when posting its records. Instead of listing only repeatedly requested records, they also included two listings
of FOIA requests: “Recent FOIAs by Subject,” and “Weekly list of FOLAs.” This aids the public in two
important ways. First, it shows members of the public what others are requesting, pointing out interesting
information they may not have know existed in the agency. Secondly, it allows the public to monitor which
documents are repeatedly requested, giving them the ammunition to prompt agencies to disclose more
information.

A vast majority of web sites with on electronic reading room, however, have guides or indexes outside
the reading room, and other “documents” within it. This is extremely confusing as itis oRen difficult to
understand the connection between the reading room and the EFOIA requirements explained in the guide.
For example, the National Endowment for the Arts has “Freedom of Information Act Guidelines,
‘online under its “Guide to the NEA ” No EFOIA information, such as the index, policy statements,
adjudications, or Federal Register Notices can be found here, They are under subject headings elsewhere,
and their relationship to EFOIA is unexplained. Even more frustrating, the Department of Energy has a
listing and description of records found in its print reading room, but does not provide electronic access to
these same records.

‘Those agencies that post information randomly without EFOTA raise a perception problem, particularly
since the process by which information is selected for posting remains a mystery and this information's
relationship to the FOIA cannot be identified. Are these documents repeatedly requested by members of
the public? Or, is the information selected for the web site simply good for agency public relations? It is
important to remember that the EOFIA covers information that reflects both positively and negatively on an
agency, department, bureau or commission. Providing only “feet good” information to the public does not
benefit the public, and in the end, harms democracy.

OMB Watch



54

records, a federal District Court recently held that if Congress
had intended to "significantly enlarge the scope of the public
interest served by FOIA," it could have taken “a more clear and

direct approach, most likely by amending the exemptions

themselves. This they did not do." That lower court held that
the plaintiff’s public interest could not be considered because
it "does not shed light on Customs’ performance of its statutory
duties," and does not otherwise let citizens know what the agency
"is up to." O/Kane v. U.S. Customs Service, No.95-0683-CIV-

MORENO (S.D. Fla. Nov. 6, 1997)

Again, the Reporters Committee is grateful for the
opportunity to discuss the issues with the subcommittee and is
grateful for the subcommittee’s continued interest in these

matters that are of vital importance to the public.


96

ELECTRONIC FORMAT AND BELIEVE WE HAVE
IDENTIFIED AN EFFECTIVE AND EFFICIENT
SYSTEM. WE WILL TEST A PILOT OF THIS SYSTEM”
IN THE NEAR FUTURE TO ENSURE ITS VIABILITY.
WE HAVE BOTH THE RESOURCES AND PEOPLE TO

FULLY AUTOMATE THE PROCESS.

WE HAVE FULLY ADOPTED THE MULTI-TRACK

PROCESSING REGIMEN.

WE ARE CREATING AN ELECTRONIC INDEX OF
ALL THE MATERIAL IN OUR PUBLIC READING
ROOM AND WILL MAKE THAT AVAILABLE ON OUR

WEB SITE.

WE HAVE A FULLY FUNCTIONING NEGOTIATION

TEAM IN PLACE THAT IS SUCCESSFULLY

10


uty

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here this morning to address the
subject of the Freedom of Information Act (FOIA), 5 U.S.C. § 552
(1994), ag amended by the Electronic Freedom of Information Act
Amendments of 1996, which is the principal statute governing
public access to Federal Government records and information.
‘This statute, which now has been in effect for more than thirty
years, has become an essential part of our democratic system of
government -- a vital tool used by our citizens to learn about

their government's operations and activities.

Attorney General Janet Reno has been etrongly committed
to the Freedom of Information Act, to its proper implementation,
and to the principles of openness in government that it embodies.
She has fostered this commitment throughout the Department of
Justice and its many component organizations. Under her
leadership, we have placed a sustained priority on our
responsibility under the FOIA to improve our service to the
American public by making available as much government

information as possible.


Franklin D Raines, Sally Katzen
September 8, 1997
Page 5

Accordingly, we urge you to rescind Memorandum M-97-10, and promptly issue new
guidance to agencies so that agencies prepare and provide indexes describing all of their
information systems and locator systems. Moreover, OMB'’s new guidance should include
instructions on common terminology and format. OMB's leadership is important to effective
implementation of this provision, which should not be delayed or frustrated any further.

Sincerely yours,

American Federation of State, County, & Municipal Employees (AFSCME)
Congressional Accountability Project

Center for Media Education

‘Consumer Project on Technology (CPT)

Data Center

Electronic Privacy Information Center (EPIC)

Federation of American Scientists

Government Accountability Project

Information Trust

Libraries for the Future

National Coordinating Committee for the Promotion of History
National Security Archives

National Writers' Union

OMB Watch

Public Citizen

Service Employees International Union (SEIU)

Urban Coalition

Enclosures:
Records Management Handbook of the Department of State, Appendix A.
Department of State Requests for Records Disposition Authority, December 31, 1996
Comprehensive Records Control Schedule for the Office of the United States Trade
Representative, Feb. 8, 1990.

Potholes on the Information Bridge to the 21st Century. OMB Watch, January 1997.


48

pages filled wath useful information. ‘They have worked closely
with information resource managers to develop electronic
information that is easily accessible to users and that will meet
their needs. By affirmatively making useful information
routinely available, they will reduce the burdens involved in
processing formal FOI requests. We hope these creative and
innovative people will reap just rewards for their efforts.

Reporters tell us that these sites are set up by agencies,
such as the Department of Transportation and the Environmental
Protection Agency, that have good track records for disseminating
information. These sites are heavily used by journalists. (one
reporter observed that the reverse is also true, that the
inadequate Websites of other agencies may reflect the suspicious
and non-communicative nature they demonstrate in their day-to-day
dealings with the public.)

We have seen some agencies voluntarily set up interactive
sites that invite electronic requests and help requesters to
write them, prodding for helpful details that will speed up
response.

We also have seen core changes in FOI processing. Before
Passage of the EFOIA, seasoned agency FOI lawyers told us that
agency electronic records were supposed to be covered by the FOI
Act. Perhaps that should have been the case, but it often was
not. If records did not exist on paper, there was a very good
chance they would not be released under the FOI Act. Agencies

which once excluded electronic records from FOI coverage would


117

I would hike to mention to the committee—and the Bureau is in
the process of adopting and automating our system, which will
greatly facilitate both the reduction of the backlog and making
records publicly available—I would like to just briefly mention that
there is one project that’s in the academic community called the
digital library, which is developing technology that will be very,
very useful for placing our reading room material on our website
and we are adopting that technology and receiving substantial sup-
port for doing that. So we’re very excited about that.

Mr. Horn. Ms. Riep-Dice, do you have any suggestions as to
what are the principal barriers to the full implementation of
EFOIA that you've encountered?

Ms. Riep-Dice. Mr. Chairman, I believe I’m probably one of the
few FOIA officers that can really say I work for a very high-tech-
nology agency. So I was very lucky in going back to my manage-
ment and telling them what we needed and the support, the major-
ity of the support was already there, just it was something that the
FOIA office had not really been using to its greatest extent. We
had a tracking system, but that was about it. So I feel that I was
a lucky person and the agency was lucky in that we didn’t have
a hard time with it.

Mr. Horn. Do you have a backlog in NASA?

Ms. RIEP-DIcE. Very little.

Mr. Horn. What are we talking about?

Ms. RIEP-DICE. Oh, we probably throughout the whole agency we
have less than 100 backlog, and we're talking backlog of between
20 and 40 days.

Mr. Horn. Between 20 and 40 days?

Ms. Riep-DICcE. Yes, sir.

Mr. Horn. And 100 requests?

Ms. RIEP-DIcE. In that 20- to 40-day timeframe.

Mr. Horn. Well, anything else?

Ms. RIEP-DICE. No, sir.

Mr. Horn. So resources is not a problem, even though Mr.
Goldin’s budget was cut twice, $5 billion each time, by the Presi-
dent? He didn’t take it out of your unit, then?

Ms. Riep-Dice. No, sir. The FOIA office within NASA does not
have its own budget. So maybe then I'm a little bit lucky in that
respect. We have a budget within the Office of Public Affairs, and
it’s not on paper budget. I just kind of go and ask them and they
evaluate it.

Mr. Horn. Good. Mr. Lopez, what about Energy?

Mr. Lopez. I would concur with Mr. Huff that the Department
of Energy needs resources as well, both for the acquisition of a fully
integrated technical system, as well as resources and personnel to
carry on the work of the FOIA.

Mr. Horn. What’s your backlog now?

Mr. Lopez. The headquarters backlog is 419.

Mr. Horn. Four hundred and nineteen requests?

Mr. LOPEZ. Yes, sir.

Mr. Horn. How many days does it take on the average?

Mr. Lopez. It takes us, the processing time is about 495 days.

Mr. Horn. Four hundred and ninety-five days?

Mr. LOPEz. Yes.


53

of $1 million or more from the Farmers Home Administration,
Washington Post reporter Sharon LaFraniere showed that the agency
allowed persons to write off loans up to $13 million and that
they lived very, very well on the money they had received from
taxpayers’ dollars. She was unable to learn the identities of
these government~funded millionaires from the agency because the
agency said that would have intruded upon the privacy of the
defaulters. She still got her story, using other means to
uncover the identities of some of the defaulters, but it should
have been easier. How many stories like hers will never be told,
concealed under the guise of protecting personal privacy?

In the Electronic FOI Act, Congress unambiguously set the
record straight on its intentions in passing a law to require
open government records.

It states:

The Congress finds that (1)the purpose of
section 552 of title 5, United States Code,
popularly known as the Freedom of Information
Act, is to require agencies of the Federal
Government to make certain agency information
available for public inspection and copying
and to establish and enable enforcement of
the right of any person to obtain access to
the records of such agencies, subject to
statutory exemptions, for any public or
private purpose; [Emphasis added]
The legislative history makes clear that this language was
intended to clarify the misinterpretation of congressional
purpose articulated in the Reporters Committee case.

Unfortunately, Congress’ intent continues to be summarily

ignored. For instance, in a case involving customs forfeiture


138

FOIA UPDATE

IT How to Make a FOTA Request
© Agencies may either include descriptions here or
provide them by cross-reference to ther FOIA.
reference guides (which should be electronically
linked for convenient electronic reference pur-
poses).

or records may request expedited processing
(see below)

Expedited processing -- an agency will process
4 FOTA request on an expedited basis when a
requester has shown an exceptional need or
urgency for the records which warrants priori-
tization of his or her request over other re-
‘quests that were made earlier.

‘A. Names, addresses, and telephone numbers of all
individual agency components and offices that
receive FOIA requests.

‘Simple request — a FOIA request that an agen-
‘ey using multi-track processing places in its
fastest (nonexpedited) track based on the vol-
‘ume and/or simplicity of records requested.

B. Brief description of the agency's response-time
ranges.

C. Brief description of why some requests are not
ranted.

‘Complex request a FOIA request that an
agency using multi-track processing places in a
slower track based on the volume and/or com-
plexity of records requested.

Il, Definitions of Terms and Acronyms Used in the Re-
pport (to be inciuded in each report)
‘A. Agency-specific acronyms or other terms. Grant -- an agency decision to disclose all
records in full in response to a FOIA request.
B. Basic terms, expressed in common terminology.

10. Partial grant -- an agency decision to disclose

|. FOIA/PA request -- Freedom of information ‘a record in pan in response to a FOIA re-
‘Act/Privacy Act request. A FOIA request is ‘quest, deleting information determined to be
generally a request for access to records con- exempt under one or more of the FOIA’s ex-
ccemning a third party, an organization, or a emptions; of a decision to disclose some rec-
particular topic of interest. “A Privacy Act cords in their entireties, but to withhold others
request is a request for records conceming in whole or in part.
oneself; such requests are also treated as FOIA
requests. (All requests for access to records, 11. Denial - an agency decision not to release any
regardless of which law is cited by the re- pan of a record or records in response 10 a
uester, are included in this report.) FOIA request because all the information in

the requested records is determined by the

2. Initial Request ~ a request to a federal agency agency to be exempt under one or more of the
for access to records under the Freedom of FOIA’s exemptions, or for some procedural
Information Act. reason (such as because no record is located in

response to a FOIA request)

3. Appeal — a request to a federal agency asking
that it review at a higher administrative level a 12, Time limits ~ the time period in the Freedom
full denial or parti denial of access 10 records of Information Act for an agency to respond to
under the Freedom of Information Act, or any a FOIA request (ordinarily 20 working days
‘other FOIA determination such as a matter from proper receipt of a “perfected” FOIA re-
pertaining to fees. ques).

4. Processed Request or Appeal — a request or 13, "Perfected" request -- a FOIA request for ree-
appeal for which ap agency has taken a final ‘rds which adequately describes the records
action on the request or the appeal in all re- sought, which has been received by the FOIA
specis office of the agency or agency component in

possession of the records, and for which there

‘5. Multi-track processing ~ a system in which no remaining question about the payment of
simple requests requiring relatively minimal applicable fees.
review ase placed in one processing track and
‘more voluminous and complex requests are 14. Exemption 3 statute --a separate federal

placed in one or more other tracks. Requests
in each track are processed on a first-ia/first-
cout basis. A requester who has an urgent need

statute prohibiting the disclosure of a certain,
type of information and authorizing its with-
holding under FOTA subsection (b)(3).


49

not dream of doing so today.

Until passage of the EFOIA, many agencies called an
electronic search of their records that retrieved requested data
from a database “creating a record." They would routinely assert
that the FOI Act did not require them to "create" records. Today
they would not make that assertion as grounds to refuse to
conduct an electronic search. They would simply conduct the
search.

The EFOIA requirement that agencies make reasonable efforts
to provide records in the format requested has clearly expanded
the usefulness of the Act. Until passage of EFOIA, agencies
appropriated the choice of format for providing records. They
made those choices for their own convenience and not in
accordance with the requester’s preference. We remember horror
stories of reporters who had requested tapes or discs receiving
boxes and boxes of unedited, unsorted printed materials that were
virtually useless to them.

Until the Electronic FOI Act made clear that electronic
search capabilities available to agencies must also be available
to requesters, agencies could simply elect not to perform an
electronic search of their databases to locate responsive
information.

When Bill Dedman was researching his Pulitzer-Prize winning
series The Color of Money for the Atlanta Constitution, a series
that changed that city’s racially discriminatory banking

practices forever, one agency conducted an electronic search of


78

component of the Department, its principal missions, and
descriptions of the multi-track FOIA processing queues that are
used by components. This reference document, which has already

been updated once, is available electronically on the

Department's FOIA home page. Our FOIA home page -- which can be
accessed directly from the Department's home page by hitting the
FOIA button -- contains research tools, a listing of the FOIA
contacts for all Federal agencies, a direct link to the
electronic FOIA sites of other Federal agencies, a listing of the

principal FOIA contacts of the Department's components, and a

direct link to the components’ electronic reading rooms.

In these electronic reading rooms, for example, one can
electronically browse traditional reading room materials such as
the United States Attorneys’ Manual and Bulletine, decisions of
the Board of Immigration Appeals, policy statements of the United
States Marshale Service, and the Attorney General's Procedures
for Lawful, Warrantless Monitoring of Verbal Communications.
Additionally, we have available on our web site frequently
requested records such as Americana with Disabilities Act
settlement agreements, the Office of Intelligence Policy and

Review's Annual Foreign Intelligence Surveillance Report, and the


88

INTOLERABLY HIGH BACKLOG OF PENDING REQUESTS, BY
INCREASING OUR EFFICIENCY IN PROCESSING REQUESTS,
AND BY MAKING OUR RECORDS AVAILABLE TO THE
PUBLIC IN ELECTRONIC FORMAT. WHILE WE STILL HAVE A
LONG WAY TO GO TO BE WHERE WE NEED TO BE--THAT IS,
NO BACKLOG AND ELECTRONIC PROCESSING END TO END--
THE PROGRESS THAT WE HAVE MADE IS DIRECTLY
ATTRIBUTABLE TO THE STRONG SUPPORT WE HAVE
RECEIVED FROM CONGRESS AND THE SHARED PERSONAL
COMMITMENT OF ATTORNEY GENERAL RENO AND
DIRECTOR FREEH. THIS SUPPORT IS ENABLING US BOTH TO
VASTLY INCREASE OUR RESPONSIVENESS TO THE PUBLIC
AND THE EFFICIENCY WITH WHICH WE PROCESS RECORDS.
WE ALL SHARE THE VIEW THAT AN EFFECTIVE FOIA
FUNCTION CAN ONLY HELP TO INCREASE THE

PUBLIC’S CONFIDENCE IN THE FBI AND OUR ABILITY TO

INVESTIGATE VIOLATIONS.OF THE LAW CONSISTENT WITH

2


43

I think that other issues that we dealt with here as recently as
5 years ago such as whether electronically stored information is
really a record, whether retrieving information is creating a record,
seemed to have resolved themselves for the most part; and the hor-
ror stories that we have told in the past of journalists getting 80-
pound printouts of paper rather than a disk or a tape seem at last
to have been put to rest, and I am delighted to tell you that.

In terms of other reform, though, I think that there are two
things that we would particularly like to point out. First, again, the
issue of timely responses, the issue of dealing with permanent
backlogs or seemingly permanent backlogs and trying to do some-
thing about them. I am sure we will be hearing about that on the
second panel.

Very few of the reporters that we work with have actually been
granted expedited review, although it seems like it ought to be
available to them. Again, one of the reasons for this may simply
be that most agencies haven’t adopted the implementing regula-
tions so they just don’t have expedited review in place in a mean-
ingful way as yet. But we really haven't seen a shift in processing
time, and we hope that Congress will keep a close eye on these pro-
visions that are intended to reduce delays and take whatever ac-
tions are necessary, including greater appropriations, to try to re-
solve this problem.

Finally, there is one other issue that is very close to my heart
at the Reporters Committee. One of the important findings when
Congress enacted this legislation was that the Freedom of Informa-
tion Act was intended to serve any purpose, and this is a finding
that has been ignored, I would say, by the executive branch and
certainly by the judicial branch.

As I am sure you recall, this sad situation all began back in 1989
in our case, the Reporters Committee case, where the Supreme
Court, in trying to strike a balance between privacy and public ac-
cess, essentially said that if a request would not meet the core pur-
pose of FOIA to ensure government's activities to be open to public
scrutiny, then privacy would essentially trump access. There have
been a variety of decisions since then that have followed that rule,
and happily, in 1996, Congress said that this was not its intent.

Unfortunately, that intent is ignored. There is a case that we are
going to be filing, a friend of the court brief, in the eleventh circuit
very shortly called O’Kane v. U.S. Customs Service where a Federal
district court held that if Congress had indeed intended to signifi-
cantly enlarge the scope of the public interest served by FOIA, it
could have taken a more clear and direct approach, most likely by
amending the exemptions themselves. This Congress did not do
that and the court therefore held that because this particular re-
quest for forfeiture of records did not shed light on Custom’s statu-
tory performance of its duties, it was not in the public interest and
the request was denied.


129

Mr Horn I now yield to my colleague, the ranking member on
the committee, Mr. Kucinich.

Mr. Kucinicu. Thank you very much, Mr. Chairman. I apologize
for being late. I was at the White House for the Kim Tae-chung re-
ception, and you know how difficult it is to be in two places at once.
I'm glad to be here right now.

I wanted to first of all take note of the testimony that I read that
indicates that the FBI has been working to clear out its backlog.
That 28-percent reduction is impressive, and I urge you to continue
on that track.

One of the things that I was wondering, any of the witnesses can
answer, is there any particular problem that comes up as you tran-
sition from paper to the computers? Are you able to protect all the
information to make sure you don’t lose anything? How do you do
that?

Mr. CoLLincwoop. First of all, thank you very much for the com-
ment. No, I don’t believe that it is an issue. We have as an agency
a project, a substantial project under way internally to convert our
recordkeeping system to an automated recordkeeping system. And
during that transition, as we do that, information is captured both
on paper and electronically to ensure that no information is lost.

Mr. KUCINICH. Specifically what do you do, though, to make sure
that in that transition period you don’t lose anything? What are the
protocols?

Mr. COLLINGWoop. I don’t hold myself out as an expert on that,
but by using the systems, I note currently the protocols are that
the information is captured electronically and on paper, and that
will continue until we have a high degree of confidence and full de-
velopment of the electronic system.

Mr. KucINICH. Well, since the passage of the Electronic Freedom
of Information law, have you had to increase the resources avail-
able or the resources that are devoted to information requests from
your agency, putting more money into that?

Mr. COLLINGWOOD. We have, and we are in the process of putting
substantially more resources into it, both from a technology stand-
point and from an employee standpoint. It’s a process that began
before the enactment of EFOIA, but it will allow us to fully imple-
ment EFOIA.

Mr. KucinicH. Now the 1996 law that requires agencies to file
annual reports with the Attorney General providing information on
number of requests completed, median time to complete requests,
total number of pending requests and median time those requests
have been pending, those reports, I understand, are due within the
next year. Have you received guidance from OMB on these reports?

Mr. COLLINGWooD. I would defer, if I could, to Mr. Huff who will
speak on behalf of the entire Department.

Mr. Hurr. Rather than OMB, we, the Office of Information and
Privacy, have given out guidance to all Federal agencies through
our FOIA Update publication which is also available online. And
we have set out exactly what Congress requires in each of the indi-
vidual elements, and then we have gone on beyond that and have
even included an area that says if your own agency or component
wishes to add additional information, in terms of either backlog re-
duction efforts or any other matters that you would just want to


113

principal obligation is to look at backlogs, at all of the different
components of the Department of Justice, check to see how they
are being reduced, give them reasonable goals for cutting them.

We've had a number of success stories that are mentioned in my
testimony. And you certainly pointed out, other than the FBI, I
think right now our biggest concern is the Immigration and Natu-
ralization Service. So Ms. Sessions, the backlog coordinator in our
office, deals with the Attorney General and deals with the compo-
nents, with their backlog problems. So I think there is a connection
through those two, if I completely understand your question.

Mr. Horn. Yes. I was wondering, who can give some guidance,
encouragement, perhaps advice as to how they can solve their prob-
lem in a place like Immigration and Naturalization?

Mr. Hurr. I think Ms. Sessions, and I think also people within
Immigration itself are working toward improving the quality of
that. They have, in fact, lowered their backlog, it’s just not being
lowered enough. They are going to be—they are receiving more per-
sonnel and more resources.

Mr. Horn. Well, on that point I can yield to Mr. Sununu now.
We'll start in on a number of areas we want to explore.

Mr. Sununu, 5 minutes.

Mr. SUNUNU. Thank you, Mr. Chairman.

Why don’t we begin with Mr. Lopez, but this is a general ques-
tion for each of the panelists.

One of the requirements of the 1996 amendments was that if a
document is subject to more than one request, that it be put online
in the so-called electronic reading room. My question is, how do you
determine exactly whether a document fits that description, and
what is the total number of documents that have been put online
as a result of this requirement?

Mr. Lopez. At the moment we have not issued departmentwide
guidance on that, but what we have been using as procedure, and
we have instructed our FOIA offices in the field to do as well——

Mr. SUNUNU. It seems like a pretty straightforward requirement.
Why haven’t you issued departmentwide guidelines?

Mr. Lopez. We issued oral guidance, and I haven’t issued—be-
cause of the fact we are decentralized through the field, and the
nature of some of the information that is in some of those field of-
fices, we are trying to develop something that can be both standard
to be used across a Department complex, across the country, as
well that takes into account those specific information needs of that
particular field office.

However, we have for many years been placing information and
imaging information that is frequently identified, particularly that
deals with health, safety, and environmental issues at the Depart-
ment, even if there was just one request for it. Other areas of inter-
est to the public that we have put—made it frequently available or
available in our reading rooms, are documents which relate to par-
ticular actions or activities that the Department may be taking in
certain areas of the country, such as the West.

Mr. SUNUNU. Do you have plans to issue a formal document?

Mr. LopEz. Yes, we do.

Mr. SUNUNU. When would that be?


122

Mr. CoLLINGWooD The same with us. I mean our focus now 1s
reducing the intolerably high backlog but, yes, we do intend at
some point to accept them.

Mr. SUNUNU. I take it you would be happy to have a backlog of
400 requests?

Mr. CoLLINGWoop. That is less than 2 weeks of work, sir.

Mr. SUNUNU. Thank you very much, Mr. Chairman.

Mr. Horn. Thank you. You all, I think, are knowledgeable about
the year 2000 problem, and what effect that might have, if any, on
various information systems within your department. Is that a
problem for any of you, since dates are involved, in going past that
‘00 day, and what kind of situation does that make for you in Jus-
tice?

Mr. Hurr. I’m going to give you the same sort of answer I gave
to Congressman Sununu. That is something that our Justice Man-
agement Division is working on, and I think they are far—much
farther ahead on that.

Mr. Horn. Does the Justice Management Division handle infor-
mation management or just management?

Mr. Hurr. Yes—I think they—I’m not certain.

Mr. Horn. OK, we will check that. But to which Assistant Attor-
ney General do they report?

Mr. Hurr. Steve Colgate, Stephen Colgate, who is the Assistant
Attorney General for Administration.

Mr. Horn. OK.

Mr. Hurr. Justice Management Division.

Mr. Horn. And how you maintain your records in the FBI, par-
ticularly individual files, birth dates, so forth, is there any problem
on the requests, that you can’t get them or something because for
some reason there might be a date, let’s say a prison term that
goes past the year 2000? Does that prove to be a problem for any
of you in terms of your record requests?

Mr. COLLINGWOOD. At this point, Mr. Chairman, we don’t believe
so. Our information is managed by our Information Resources Divi-
sion that has also our technical computer people. They have identi-
fied those computer systems within the FBI that will be affected
by the year 2000 problem, including those that are at risk now and
those that are not at risk, and they have developed and are imple-
menting a plan to address those. And it’s my understanding that
as far as FOIA goes, the issue will not cause a problem for us.

Mr. Horn. OK. How about NASA?

Ms. RiEp-Dice. No. That was one of the things I had checked on,
and that has all been worked out, so we shouldn’t have a problem
at all.

Mr. Horn. OK. How about Energy?

Mr. Lopez. Yes, like Mr. Huff, I am not versed in that particular
area because it’s not the responsibility of my office. But we are
working with the office which has responsibility to identify what
that impact will be.

Mr. Horn. What is that office?

Mr. Lopez. It’s Office of Information Management.

Mr. Horn. OK. Really they're running the computer systems
within the department, I take it?

Mr. Lopez. That’s part of their responsibility.


127

COMMITTEE HOUSE GOVERNMENT REFORM
AND OVERSIGHT SUBCOMMITTEE

DATE: June 9, 1998
WITNESS. Abel Lopez
PAGE 96, LINE 2189
INSERT FOR THE RECORD

The total current FTEs for the Department of Energy FOIA Program is 42. The distribution of
the FTEs at the FOIA offices of the Department are as follows

Headquaners FOIA Office FTEs
Albuquerque FOIA Office 3 FTEs
Idaho FOIA Office 3 FTEs
Nevada FOIA Office 2 FTEs
Oak Ridge FOIA Office 3 FTEs
Oakland FOIA Office 2 FTEs
Richland FOIA Office 3 FTEs
Savannah River FOIA Office 1 FTE
Golden Field FOIA Office 1 FTE
Ohio Field FOIA Office 1 FTE
Rocky Flats FOIA Office 1 FTE
National Petroleum Technology Office (Tulsa) | FTE
Federal Energy Technology Office (M WV) 1 FTE
Federal Energy Technology Office (Pittsburgh) | FTE.
Office of Scientific Technology Institute 1 FTE
Bonneville Power Administration 2FTEs
Southeastern Power Administration 1 FTE
Southwestem Power Administration 1FTE
Westem Power Administration 1 FTE
Strategic Petroleum Reserve Project Office 2FTEs
Alaska Power Administration 2 FTEs

In FY 97. a Reduction in Force (RIF) was initiated at Headquarters. Although the Headquarters
FOIA Office was not required to conduct a RIF for its staff, normal attrition resulted in a staf
eduction in the FOIA Office by three FTEs that year. To address this staff reduction in the FOIA
Office. additional support was obtained by transferring three staff employees from other
Headquarters offices. Two of these employees are now permanent staff positions in the FOIA
Office and are included in the nine FTEs. In FY 97 and 98, funding was requested and obtained
for one part-time contractor support staff. This part-time employee was converted to a full-time
position in FY 99


151

Mr. Horn. When might that come, that document that gives us
a bird’s eye view?

Mr. Hurr. I suspect that within the next month that we should
be able to have some sort of estimate. I am not certain, but I be-
lieve so.

Mr. Horn. That will give us time to meet our printing process.

Mr. Hurr. If I had more than 1 month, I would like it.

Mr. Horn. No; that month is great. We will expect it.

Now, are the indices, and I realize you are mostly concerned with
Justice, but you have a broader view than most of us in this
room—is most of it being made available on the internet, the indi-
ces themselves, not just the procedure of how you access a file, but
the possibility of what you might want to get into?

Mr. Hurr. I don’t have any direct knowledge on that. OMB
Watch I think noted that there were in some agencies and many
agencies needed work. I don’t personally have any basis to con-
tradict that.

Mr. Horn. Well, that is why we want to look at how we get the
management in this area so the whole executive branch is involved
in it. Does the online index you have so far, even if it is pretty
much just in-house, identify the documents available online or all
major document systems? How is this dealt with as to where they
can find it? Is that part of being online?

Mr. Hurr. That is part of the project that we are working on.
What we do have, if I may, in our reference guide we have discus-
sions of each component of the Department of Justice, and then we
will have a paragraph that will say, here are the main categories
of work, of missions that this component has. And you can look at
that paragraph not to see the major information systems but to see
the general categories of responsibility that that component has, so
that you would know if you were looking for antitrust materials,
you would, of course, look in the Antitrust Division; if you were
looking for another issue, you would look in another place. But the
answer to your question directly is we still have a long way to go
to do what you have asked on that.

Mr. Horn. Well, just let me ask one last question. You have been
very patient. Is there anything you would like to get on the record
that you felt, “Gee, you know, I would like to have said this to this
particular question,” but we didn’t call on you because we focused
on the person we were asking the question to? Any additional
points you want to make?

Mr. Hurr. No, sir.

Mr. CoLLINGWoop. No, sir.

Ms. RIEP-DICE. No.

Mr. Lopez. No, sir.

Mr. Horn. Well, thank you very much for coming. We appreciate
your testimony. We will be working on this over the next few
months, and we look forward to that survey of the government at
large, at least the executive branch of the government at large.
Thank you.

The staff whom I would like to acknowledge on this are J. Rus-
sell George, staff director and chief counsel, seated against the flag
at the wall there; Mr. John Hynes is the professional staff member
responsible for the hearing; Matthew Ebert is the clerk responsible


CONTENTS

Hearing held on June 9, 1998
Statement of
Huff, Richard L , Co-Director, Office of Information and Pnivacy, Depart-
ment of Justice; John E. Rellingecod, Assistant Director, Office_of
Public and Congressional Affairs, Federal Bureau of Investigation; Pa-
tricia M. Riep-Dice, Freedom of Information Officer, National Aero-
nautics and Space Administration; and Abel Lopez, Acting Director,
Freedom of Information Division, Department of Energy
McDermott, Patrice, information policy analyst, OMB’ Watch, Michael
Tankersley, senior staff attorney, Public Citizen Litigation Group; Jim
Riccio, staff attorney, critical mass energy project, Public Citizen; and
Jane Kirtley, executive director, Reporters Committee for Freedom of
the Press ..
Letters, statements, etc., submitted for the record by:
Collingwood, John E., Assistant Director, Office of Public and Congres-
sional Affairs, Federal Bureau of Investigation, prepared statement

of... a
Horn, Hon. Stephen, a Representative in Congress from the State of
California, Preares statement of
Huff, Richard L., Co-Director, Office of Information and Privacy, Depart-
ment of Justice:
FOIA Update .
Letter dated O
Prepared statement of
Kirtley, Jane, executive
the
Prepared statement of ..
Report on responses ani i
Lopez, Abel, Acting Director, Freedom of Information
ment of Energy:
Information ¢ ‘concerning total FTE’s
Prepared statement of .
McDermott, Patrice, information policy analyst, OMB Watch, prepared
statement of ... 2
Riccio, Jim, staff attorney, critical mass energy project, Public Citizen,
prepared statement of ..
Riep-Dice, Patricia M., Freedom of Information Officer, National ‘Aero-
nautics and Space Administration:
Information concerning information systems
Prepared statement o}
Tankersley, Michael, senior staff attorney, Public Citizen Kitigation
Group, prepared statement of ..

qm)

f

7B

127

121
100

18


145

Mr. Hur. Our advice is just slightly different from that. Ours
says once you have a request and you process documents and make
them available, if in the FOIA officer’s judgment you are going to
receive future requests, which means two more requests, then in
your judgment, that is the FOIA officer’s judgment, that he or she
should have it put in the reading room. If it is paper that is older
than November 1996, it would go just in the paper reading room.
If it was created after that date, it would be available electronically
and it would be available in the paper reading room as well, and
that is the way we have approached that.

Once in a while, a FOIA officer just might have—his or her judg-
ment might not be correct and he or she might say I don’t think
we are going to get any more, and lo and behold, by the time we
receive the third one, then that is the trigger that in almost every
case would then lead you to say, I do need to put it up electroni-

cally.

Mr. Horn. Now, is that true throughout the executive branch,
that rule, sort of two and three?

Mr. Hurr. That is the advice we have given: If you have one and
you suspect you are going to receive multiple requests, more than
one beyond that, then you should put it up. That is the advice the
Department of Justice has given out in FOIA updates.

Mr. Horn. Is that being followed by the FBI?

Mr. COLLINGWooD. Yes, Mr. Chairman. We also have the caveat
that we are doing some analysis here to see what volume the
records historically would result in, because we don’t want to end
up with so many records in our public reading room that it loses
its effectiveness. So we are in the process of developing not only the
process to get them into the reading room and up electronically,
but also remove them from the reading room when they are not
looked at for some length or period.

Mr. Horn. That is a good question. That is a question every li-
brarian asks about the shelves, and as a book collector, I go around
to libraries and buy their surplus books. So what do you plan
when, let’s say, either through longevity and assume death and no
calls on it, when are you going to take it off the electronic site? Is
it Just going in a disk for future reference, or how are we handling
that?

Mr. COLLINGWOOD. Yes; once it is captured electronically, it is on
a CD-ROM, and then it would be readily available for anyone who
would request it. We have not yet confronted the situation of what
to take down from our web site because it is no longer requested.
For our paper reading room, the rule of thumb we use is if we have
no requests for 5 years, then we take it out and replace it with
more current material.

Mr. Horn. So if I am reincarnated as a space alien 400 years
from now, I can go to a cave and I am going to find that disk, is
that it? I mean, are we going to put them in caves? Or where are
we going to store the disks?

Mr. COLLINGWOOD. Well, I am not certain. Storing the disks,
though, is going to be a lot easier than storing the paper records
because they are captured forever, and that is one of the huge ad-
vantages of electronic process, the actual electronic processing of
documents, as opposed to just scanning them, because when they


106

Mr Chairman and Members of the Subcommittee

1 am pleased to appear before you today to discuss the Department of Energy's progress in
implementing the Electronic Freedom of Information Act Amendments of 1996. My name is
‘Abel Lopez, and I am the Acting Director of the Department of Energy's Freedom of

Information Act Office.

Background

Foliowing the President’s call upon all Federal departments and agencies to renew their
commitment to the Freedom of Information Act in October 1993, the Department of Energy
aggressively sought ways to improve its responsiveness to requesters under that Act and to
support the underlying principles of government openness. We fully supported the President's
Openness Initiative, and we are proud of the progress and improvements we have made since that

time.

Since 1993, the Department has made significant changes to increase the direct
availability of information on its past and current operations to the public, without imposing

a burden on its stakeholders to go through the FOIA process.

In July 1996, the Openness Advisory Pane! was convened by the Secretary of Energy to assess


66

(b) (7) (C), were not amended.

Also, although, as plaintiff points out, Bibles
was decided on February 18, 1997, several weeks before
the effective date of the Amendments,. the Amendments
were enacted October 2, 1996, more than four months
before the Bibles decision. If the enactment of the
Amendments had undercut the Court's ruling in Reporters

, one of the most significant and frequently
cited decisions of the Supreme Court regarding the
FOIA, the Supreme Court would surely have taken note.
Yet, there is no mention of the Amendments in the
Bibles decision.

Plaintiff's cross motion has failed to show that
the disclosure of the addresses of private individuals
which he is seeking would further a public purpose as
defined under i The public interest
which would be served by dissemination of information
through attorney advertising is distinct from and
unrelated to the public interest in being informed as
to the operations of the government. Therefore, it is
not the type of public interest which is relevant to
the issues in this case. Defendant's Response To
Plaintiff's Cross Motion For Summary Judgment at 4,
O’Kane v. U.S. Customs Service, No. 95-0683-CIV-MORENO
(S.D. Fla. Nov. 6, 1997)

The “core purpose” argument continues to be utilized in
numerous other cases decided since passage of the Electronic FOI
Act. Summaries of these cases are collected in the Appendix at

the end of this report. Not one of the decisions acknowledges

Congress’ finding.

In the legislative history to the FOI Act in 1965 and 1966,
Congress discussed the privacy exemption to the FOI Act in terms
of balance between private and public interests. There is no
reason to believe that Congress changed its mind in the years to

come. By 1989 it had amended the FOI Act several times without


52

language in the Findings section was meant to rebut the intent
attributed to Congress in the Supreme Court’s decision in a 1989
case involving the Reporters Committee. The high court rejected
a request for information on a government contractor’s rap sheet,
saying "this is not the kind of public interest for which
Congress enacted the FOIA." The court said the FOI Act’s
"central purpose is to ensure that the Government’s activities be
opened to the sharp eye of public scrutiny, not that information
about private citizens that happens to be in the warehouse of the
Government be so disclosed." The high court reached this
conclusion on its own; the government had not argued this
position. Department of Justice v. Reporters Committee, 489 U.S.
749 (1989)

In that decision and in many which have followed, courts
have said that because Congress enacted the FOI Act in order to
shed light on government operations and activities, a balancing
test weighing privacy and public interests will tip in favor of
privacy unless the records directly reveal what the government is
up to.

As a practical matter, the high court’s interpretation of
Congress’ intent has locked up information in any government
files that happen to contain the names of identifiable
individuals. When the public can learn nothing about how
government affects or is affected by individuals, it can learn
very little from its FOI requests.

For example, in an excellent series on defaulters on loans


101

« In May 1997, at NASA's Annual FOIA Conference, Headquarters notified all NASA
Center FOIA Offices of the steps that HQ had taken and provided them with the
guidelines necessary for their establishment of Center FOIA Homepages.

© In June 1997, the Chief Information Officer (CIO), in coordination with the Offices of
Public Affairs and General Counsel, issued CIO Executive Notice 21-97, directing
each Center to establish and maintain an Electronic Reading Room on the World
Wide Web by November 1, 1997. The Notice also directed each Center to establish a
FOIA Homepage with an electronic mail address to each site beginning with
FOIA @ (appropriate Center abbreviation).nasa.gov. The Notice further directed that
the FOIA Homepage must reside prominently on each Center Homepage so that the
general public could access it easily.

These FOIA Homepages satisfy several of the requirements of the E-FOIA. They
contain the Electronic Reading Rooms, instructions on processing a FOIA request,
links to other NASA sites (both FOIA and front entrances) and other information, as
deemed appropriate by a Center. The Office of Public Affairs provides guidance on
the information to be placed in the Electronic Reading Rooms. Security against
improper access to NASA Information Systems is provided by each Center's
information technology organization, consistent with the Agency's information
technology security policies, architectures, and standards. In this respect, we try to
ensure an appropriate balance between our obligation to disseminate information to
the public, the public's right to access appropriate information, and our duty to protect
sensitive information and systems from unauthorized disclosure, alteration, or loss.

© In June 1997, the NASA Headquarters employees were notified via electronic
message and the Center Public Affairs Directors via a memorandum from the Acting
Associate Administrator for Public Affairs, of the establishment of the Electronic
Reading Room on the NASA Headquarters FOIA Homepage as a result of the
enactment of the E-FOIA.

© By early this summer, NASA will publish our revised FOIA regulations which will
reflect all changes required by the E-FOIA.

NASA Headquarters was the first U.S. Government agency to establish a FOIA
Homepage which satisfied the E-FOIA Reading Room requirement, approximately 8
months in advance of the November 1997 deadline. Today all of our Centers have a
FOIA Homepage on the Web. Although they may vary in design, all of the Homepages
contain the information required by the E-FOIA.

In addition, NASA began accepting electronic FOIA requests in May 1997. While this is
not a requirement of the E-FOIA, we believe it facilitates public access. Since January
1998, the NASA Headquarters FOIA Office has received approximately 500 electronic
FOIA requests. Many of those requests are for documents that are already publicly
available without submitting a FOIA request .


26

obtain access to agency records under the FOIA See Attachment A OMB did not respond to
this request but, in April 1998, shortly after Public Citizen sought judicial review of these OMB
instructions, the OMB rescinded this guidance and acknowledged that agencies needed to do more
to comply with Section 552(g).? The new OMB Memorandum, however, does not underscore the
importance of full compliance with Section 552(g)'s mandate that agencies provide the public with
descriptions of major information systems.

Agencies Have Resisted Full Implementation of the 1996 Amendments’ Mandate That
Agencies Affirmatively Disclose Records Using Computer and Telecommunications
Technology

‘The 1996 Amendments also promise to significantly improve public access by requiring
agencies to make two types of records instantly available on-line if the records were created after
November 1, 1996. First, agency decisions and statements concerning the application and
interpretation of the law must now be made available on the Internet (or through other electronic
means) if these records were created on or after November 1, 1996." Second, each agency is now
required to make records that "have become or are likely to become the subject of subsequent
requests for substantially the same records” under the Freedom of Information Act available to
the public in depositories for paper records popularly known as “Reading Rooms.” If these
“repeatedly requested” records were created after November 1, 1996, the agency must also make

° Memorandum of Franklin D. Raines on “Updated Guidance for Developing a Handbook
for Individuals Seeking Access to Public Information”(April 23, 1998).

'° The agency records that are subject to this requirement are: "(A) final opinions,
including concurring and dissenting opinions, as well as orders, made in the adjudication of
cases; (B) those statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register; and (C) administrative staff manuals and
instructions to staff that affect a member of the public." 5 U.S.C. § 552(a)(2)(A)-(C).

9


22

handbooks on requesting agency records, but a number of small, less prominent agencies still do
not have such handbooks.

Apart from the delay in preparing handbooks, many handbooks are poorly prepared and
provide only minimal information. OMB has done little to encourage agencies to prepare
comprehensive, user-friendly handbooks, and has not provided meaningful guidance on what the
handbooks should contain. The legislative history concerning Section 552(g) shows that Congress
expected that OMB would take steps to ensure that agency guides for requesting records follow
acommon format and use common terminology to describe record systems and locator systems.
H. Rep. No. 795, 104th Cong., 2d Sess. 30 (1996). OMB has not undertaken such steps.
Instead, OMB's guidance on handbooks for the public gives minimal information to agencies on
what the handbooks should contain and discourages standardization by instructing agencies that
the "'[tlypes and categories’ of available information will vary from agency to agency, and
agencies should describe their information resources in whatever manner seems appropriate.”

‘The objectives of the 1996 Amendments have been further undermined by agencies’ failure
to fully implement the statute's directive that agencies provide the public with reference materials
describing their major information systems. It should not have been difficult for agencies to
Prepare the public reference materials required by the 1996 Amendments because agencies have
Jong been required to “maintain a current and complete inventory of the agency's information
resources” under the Paperwork Reduction Act. 44 U.S.C. § 3506(b)(4). But many agencies

have ignored this requirement that they inventory their information resources, including their

5 OMB Memorandum M-97-10 at 2 (April 7, 1997), and Memorandum of Franklin D.
Raines on “Updated Guidance for Developing a Handbook for Individuals Seeking Access to
Public Information” at 2 (April 23, 1998) (containing the same instruction)


105

Our strategic information management process, a front-end cor-
porate analysis of DOE-wide information technology needs, will be
completed by the end of the year, and we will identify our alter-
natives and recommended courses of action for electronic FOIA.
Any major corporate investment necessary to implement this sys-
tem will be tracked through our information technology investment.
portfolio system.

The Department is also developing a single source inventory and
index of all major information systems. This inventory will be fur-
ther developed by incorporating key identifying information from
all major systems within the framework of the Government Infor-
mation Locator Service, which will be accessible through a revised
DOE home page. The Department’s GILS application is planned to
be operational this month, and followup activities will be continued
in the third and fourth quarter of the fiscal year.

f Thank you, Mr. Chairman. I am pleased to answer any questions
for you.

[The prepared statement of Mr. Lopez follows:]


Franklin D Raines, Sally Katzen
September 8, 1997
Page 3

important because it receives more than two thousand FOIA requests each year, and has a
backlog of requests that delay responses for more than two years. A requester examining the
‘State Department's GILS records for an index of all of its major information systems, however,
would find only ninety-five entries, consisting primarily of identifiers for publications and
electronic records that the Department actively disseminates. These GILS records would provide
little, if any, assistance to a requéster seeking to draft a FOIA request to the agency because the
Department has numerous systems of automated and paper files that are not described by these
GILS records. For example, the Department's internal records handbook and schedules, copies of
which are enclosed here, identify specific systems of correspondence, briefing books, treaty and
agreement files, claims files, and finding aids that catalog and organize agency records that are
subject to the FOIA. The State Department, presumably relying on OMB’s advice, is not

ding an index or description that covers these information systems and locators, as required
by the 1996 Amendments to FOIA.

‘Second, Memorandum M97-10 frustrates the goals of the FOIA Amendments because
the Congress intended for the guides and reference materials required by 5 U.S.C. § 552(g) to
provide more information than the GILS program. In reporting the Amendments, the House
Committee on Government Reform and Oversight specifically stated that the guide required by
the 1996 Amendments “is intended to supplement other information locator systems, like the
Government Information Locator System (GILS) called for in the Paperwork Reduction Act of
1995." By advising agencies that the FOIA Amendments require nothing more than establishing a
GILS “presence,” OMB has thwarted Congress’ intent that these indexes go beyond GILS and
provide meaningful reference materials for requestors seeking records under the FOIA.

Indeed, the GILS program described in Bulletin 95-01 was adopted before the Paperwork
Reduction Act of 1995 established a statutory mandate for GILS, and OMB has not revised its
description of GILS to comply with the broader mandate set forth in 44 U.S.C. § 3511. In short,
Congress’ statutory directives in FOIA and the Paperwork Reduction Act require more than the
GILS program described in Bulletin 95-01. By erroneously instructing agencies that following the
1994 OMB Bulletin on GILS will satisfy Congress’ 1996 directive in the Electronic FOIA
‘Amendments, OMB is obstructing Congress” effort to make more information about agency
records systems available to the public.

Some agencies have devoted substantial resources to developing GILS records. The
Environmental Protection Agency and Department of Defense have produced hundreds of GILS
records. Their records provide a good example of how records indexes can aid FOIA requesters.
‘These agencies, however, stand out as rare exceptions.

7H. Rep. No. 795, 104th Cong,, 2d Sess. 30 (1996) (italics added).


115

gesting that there are 11,000 requests for individual documents
and they’re all unique requests?

Mr. CoLLInGwoop. No, they’re not all unique requests. There are
many that would fall in that category. We have the ability to iden-
tify those and put them aside and put them on that. We have a
process ongoing for developing a system to do that.

What we don’t want to do at this point is do anything that will
negatively impact on our ability to reduce the backlog. We are at
the same time developing an end-to-end automated process that
will allow us to do this very, very easily, simply by inserting a disk
and uploading the information onto a website.

Mr. SUNUNU. Are you suggesting that the backlog is a result of
a lack of resources?

Mr. CoLLINGwoop. I’m suggesting that the backlog came about
for several reasons; the lack of resources, which has now been gen-
erously cured by Congress, was one of those reasons. There were
some inefficiencies in those processes that we're confident we have
now addressed.

Mr. SUNUNU. Thank you, Mr. Chairman.

Mr. Horn. Let me pursue where Mr. Sununu left off here. What
is the average time it takes now to fulfill a request? When you last
appeared before us, it was 4 years, as I remember. What is it now?

Mr. COLLINGWOOD. In an average, it’s approximately 895 days,
but that’s somewhat deceiving because we have fully embraced and
adopted the multiple queue scheme, which I think has greatly ex-
pedited the smaller cases to where we're producing many of those
in the 1996, 1997 timeframe. Some of the older project cases that
are an enormous number of documents are still in all honesty quite
old, but we’re aggressively addressing those as well.

Mr. Horn. What is the situation in the FBI that might be quite
different than the requests in the Department of Energy, for exam-
ple, or NASA? It seems that a lot of those requests are people look-
ing at their individual files, and you wouldn’t really have, unless
it was a case that had notoriety or something, you really wouldn’t
have a request for 2, 3, 10, 20, I assume, with that file. Is that
true, or what is the nature of the requests you receive?

Mr. CoLLINGWoop. That is true. Seventy-five percent of our re-
quests come from individual requesters; 14 to 15 percent come from
prisoners. Many of our requests are precisely that, individuals
wanting to know if the FBI has information about them, and they
are definitely a priority, and that more than anything else, Mr.
Chairman, I believe is what we need to address. We need to be as
timely as possible in addressing individual requesters.

Mr. Horn. Well, just going down the line, what do you think is
the major problem in the law that prevents you from fulfilling the
1996 amendments? Mr. Huff, do you see any major problem or is
it just resources?

Mr. HurF. I think in terms of the difficulties we have in com-
plying with the law, it is twofold. One is resources. In the Depart-
ment of Justice, we are increasing our resources through a wide va-
riety of components, and we are also taking other avenues to in-
crease resources, other than just personnel, to address the backlog.
That’s certainly one.


136

2 FOIA UPDATE

Summer 1997

EEE
. .. Electronic "Links" and "Home Pages"

‘Cont’é from preceding page
‘of the information on its home page.

‘The Justice 1's FOIA home page will soon
‘be accessible by a link directly from the Department's Web
site (at hep://wew.usdoj.gov). The FOIA home page is
‘being designed to meet the needs of all users, whether they
‘are first-time users curious about some aspect of disclosure

‘As planned, the fret entry oo the main meno on the

ng that thewr World Wide Web sites can be an efficient way
of both meeting their Electronic FOIA amendment obliga
tions and making information readily available tothe public.
‘The Federal Deposit Insurance Corporation opens its FOIA.
tbome page (at tttp://www.fdic.gov) by telling online read-
es that “a wealth of information” is available at their
fingertips. It recommends that users first look at the "FDIC
Public Information Page,” where there are many documents
available for reading and downloading. Next, users can
browse the "Public Information Center,” where there is a

Justice Department's FOIA home page will be an
tory text on the FOIA and the Privacy Act. Following that
‘will be the Sustice Departiment’s FOIA Reference Guide, its
FOIA and Privacy Act regulations, and the texts of both the
FOIA and the Privacy Act. ‘The next entry will bea lit of
Justice Department components and their FOIA offices. By
‘choosing this topic, users will be able to link directly to the
FOIA home page of each Justice Department component—
Federal Bureau of Investigation, Office of Legal Counsel,
Civil Division, etc. Each component will post the uame,
address, and telephone number of is principal FOLA officer,
‘brief description of its functions, and an itemization of the
‘types of information it makes publicly available—and it also
‘will specify if any special information is required to make

‘component,
of Investigation, has already placed on the Web many rec-
‘rds of popular interest that have been previously processed
for release under the FOIA. The list of available subjects
includes ones such as Elvis Presley, Amelia Earhart, Jackie
Robinson, Project Blue Book (a UFO study), and Klaus Bar-
bie. When 2 portion of a record has been excised, a code
appears in the margin of at the place of deletion. These
‘codes may be matched up to an “Explanation of Exemp-
tions" narrative that is also accessible electronically.
Finally, the Justice Department’s FOLA page will in-

Guide,” the “Privacy Act Overview,” FOIA Undate, and the
“Citizen's Guide to the FOIA" that is issued by Congress.
‘The Department made such publications available electron
ically through the Internet prior to developing its World
Wie Web te, Sor EOIA Uni, Winter 1995, 2
‘At the FDIC
‘Other federal agencies, both large and amall, ae find-

fist of available by mail oF for and
copying at the FDIC's Washington, D.C. Headquarters

‘The FDIC's FOIA home page is organized convention-
ally, with a central body of text and an expanded eft margin
that contains seven vertical boxes or options for the user to
click on. Indeed, the first subdivision of this home page is
“Popular FOIA Records,* which contains the FDIC's elec
tronic reading room materials, The FDIC bas begun to
place records in its electronic reading room. Inside the
electronic reading room, there are multiple options for rec-
‘rds, including a Tink in some instances to more information
‘bout the record.

‘Additionally, the FDIC's FOIA home page contains its
FOIA fee schedule, followed by information on submitting
4 POIA request, answers to frequently asked questions, &
description of FOIA exemptions, and an explanation of the
administrative appeal . Ina separate option, called
“Other Nou-FOIA Links," the FDIC also provides Tinks to
coher federal departments and agencies that may have infor-
sation of interest to potential FOIA

tn complying with the requirements of the Electronic
FOIA amendments, agencies should continue to develop and
refine World Wide Web sites that are both comprehensive
and user-friendly. The use of available electronic resources,
such as FOIA home pages and electronic links, can make ia-
formation publicly aceatible i way tht is cost-fient
for all federal agencies

FOIA UPDATE

Published quarry by the Office of Inforation and Privacy, U.S. De-
parmnent of furice, Washington, D.C. 20530, 202) 514-3642. The A
Tomey Genera hat etrrined iat the publication of this periodical ix
eceseay w the mansacton ofthe public business of the Deparment of
Tesica, as rouied by lew

Richard L Hot
Danial J. Mecate
Depuy Director
Margaret Ann Irving
on
‘Pamela Maida

‘Diet wit cary by Ow a OLA oes nd ter mee

‘offices goveramentvide. Als avaiable trough the Superintendent of
Dounena, OPO, Wainger, DiC. 204, Sock. 72702000
6. Nongoveramene subscription price: $3.00, domeste: $6.25, foreign


58

On June 9, 1998, during its hearing on the status of
enforcement of the Electronic Freedom of Information Act, this
subcommittee asked Jane E. Kirtley, executive director of the
Reporters Committee for Freedom of the Press, for this report
detailing the failure of the executive branch and of the courts
to recognize the intent of Congress, through passage of the
Electronic FOI Act, to clear up and set right a long-standing

misconception of Congressional purpose for enacting the FOI Act.

ons Prior to 198:

Since the FOI Act became law in 1966 and until the decision
in Department of Justice v. Reporters Committee, 489 U.S. 749
(1989), the federal government deferred to the legislative
history of the Act, which called for a balance of public and
private interests in deciding whether the Privacy Exemption
(Exemption 6) should be invoked.

In 1974, Congress reined in the rampant use of the law
enforcement exemption by narrowing it. The amended exemption
provided that law enforcement information could be withheld only
if any of six specified harms would occur from disclosure, one of
which would be intrusion on personal privacy. To use the privacy
arm of the exemption (Exemption 7(C)), agencies and courts have

employed a balancing test very similar to that which is used for

Exemption 6.


112

Mr. Horn. We thank you, Mr Lopez. Let me just ask you one
technical question that might be just a typo that you have in your
testimony. You noted in your written statement, and orally just a
minute ago, that DOE provides electronic access to reading room
records created after November 1, 1997. The law, however, puts the
cutoff at November 1, 1996, and I just wonder, is that a typo—

Mr. Lopez. That was a typo.

Mr. HORN [continuing]. Or does Energy have a different interpre-
tation?

Mr. Lopez. It was my own typing.

Mr. Horn. You mean we're down to that in Energy now? The ex-
ecutives have to do their own work, that’s the new age.

Mr. Sununu and I are going to alternate about 5 minutes each
to get through a rather broad questioning agenda and other ques-
tions that we have. But let’s start with the simple ones.

Tm going to first ask you, Mr. Huff, describe for me the role of
your particular office within the Department of Justice. Besides ad-
vice, is there any encouragement your office can give to the various
operating agencies of Justice? How does that office work?

Mr. HurF. Our office conducts a number of functions. The pri-
mary function in terms of our manpower is to adjudicate all admin-
istrative appeals from denials of the Department of Justice. And
last year we received 3,300 appeals, and that was on a 9-month re-
porting period; annualized that would be approximately 4,400 ad-
ministrative appeals.

Within the Federal Government, we do give advice, as I had
mentioned in my testimony, and we encourage agencies to comply.
Within the Department itself, a large part of the information and
the encouragement that we give to our own components is done two
ways: one, through administrative appeals, and wnen we're acting
on an action where a component is being required to release addi-
tional information, we of course talk with that component about
why they need to release that, and hopefully that particular issue
won’t come up so frequently in the future. So that’s one of the
ways.

The other way is we can conduct training, not only government-
wide, but we occasionally will hold training seminars within the
Department of Justice itself in which we speak to the FOIA leader-
ship of the different components of the Department of Justice.
Those are the principal ways.

Mr. Horn. You basically also review that booklet which we print
every so many years through the committee, I take it?

Mr. Hurr. We have had an opportunity to review that, and we
have been delighted to do that.

Mr. Horn. You have done an excellent job on that. The reason
I ask is, I hear complaints about the Immigration and Naturaliza-
tion Service in terms of backlog. I just wonder, who in the hier-
archy can talk—have a little chat—with the Commissioner, shall
we say, and see how we can solve these problems? Who would that
be in Justice that has operational control there?

Mr. Hurr. Well, I think first of all it would be the Commissioner
herself. One of the actions that the Attorney General has taken
during the past year was to have a backlog coordinator assigned,
and that person, who works in our office, is a senior person whose


16
-2-

The Freedom of Information Act was strengthened two
years ago when Congress passed and President Clinton signed into
law the Electronic Freedom of Information Act Amendments of 1996.
These amendments -- referred to as "EFOIA" -- brought the FOIA
into the electronic information age by treating information
maintained by agencies in electronic form in generally the same
way as paper records. EFOIA promotes the use of advanced
information technology in order to achieve efficient disclosure

of information to the public by electronic means.

Briefly, EFOIA addresses electronic record issues, the
timeliness of agency responses to FOIA requests, and other
procedural matters under the Act. FOIA requires agencies to
search for information in electronic form in response to a FOIA
request according to a "reasonable efforts" standard, and it
requires agencies to produce information in the particular form
or format that a FOIA requester prefers according to that same
standard. It requires that records processed for disclosure
under the Act that may be the subject of additional FOIA requests
be placed in agency reading rooms, and it requires that newly
created reading room records be available to the public

electronically as well.


28

usually complain that the 1996 Amendments impose unfunded mandates If an agency has made
providing on-line access a priority, however, costs are not a significant barrier. The Nuclear
Regulatory Commission, an agency that made a commitment to providing the public with on-line
‘access to government information even before the 1996 Amendments to FOIA were enacted, has
dismissed protests that compliance with the 1996 Amendments is prohibitively expensive, and has
stated that it considers the added cost of establishing an Electronic Reading Room to be minimal.
63 Fed. Reg. 2873 (Jan. 20, 1998).

Other problems with the implementation of the Electronic Reading Room requirement have
also emerged. First, a few agencies have suggested that they may limit the repeatedly requested
records available on-line based on the agencies’ assessment of the importance of the records. The
statute sets forth two criteria for determining whether records identified in response to FOIA
requests must be made available in the agency's Reading Room: records are to be placed on-line
if the agency determines that the records, because of the nature of their subject matter, “have
become or are likely to become the subject of subsequent requests for substantially the same
records." 5 U.S.C. § 552(a\(2)(D). An important aspect of this provision is that the test of
whether a record must be made available on-line does not depend on whether the record is a
formal agency pronouncement, or whether the agency wants to disclose the record. Instead, the
public's interest in the record is determinative and even records that the agency may be reluctant
to disclose must be made available on-line under this provision.

A few agencies, however, have adopted ot proposed regulations that do not strictly adhere
to the “have become” and “are likely to become” criteria. These regulations state that the agency

will determine on a “case-by-case” basis whether records should be made available to the public


94

THESE ARE A FEW OF THE THINGS WE HAVE DONE,
AND WE ARE PLEASED THAT THEY HAVE HAD A
MEASURABLE IMPACT. REALISTICALLY, THERE ARE MANY
POSSIBLE FUTURE FACTORS THAT COULD ADVERSELY
AFFECT OUR CONTINUED SUCCESS-SUCH AS INCREASES IN
LITIGATION OR DRAMATIC INCREASES IN THE NUMBER OF
REQUESTS. BUT WE ARE CONFIDENT NOW THAT THE 10-
YEAR TREND OF AN INCREASING BACKLOG IS
PERMANENTLY REVERSED. WE ARE CONFIDENT THAT THE

BACKLOG WILL BE ELIMINATED.

IN REGARD TO COMPLIANCE WITH EFOIA, I AM
LIKEWISE PLEASED TO REPORT THAT WE HAVE SOME
EXCITING ADVANCES UNDERWAY. WE ARE FULLY
COMMITTED TO BOTH THE LETTER AND SPIRIT OF THIS
NEW LAW, AND WE BELIEVE THAT ULTIMATELY ITS

PROVISIONS WILL DECREASE NOT INCREASE OUR

8


bureaus and commussions for thus study were selected from the Public Cinzen “Agency FOIA Handbooks
and References” and Department of Justice, “FOIA Admunustrative and Legal Contacts at Federal
“Agencies” web sites. In each case, we searched for the existence and completeness of four major categories
of information required under the 1996 EFOLA amendments:

> Records including Federal Register notices, opinions from agency adjudications, and
interpretations adopted by the agency;

. ‘An index of all major information systems;

» A FOIA guide detailing how to request records from the agency;

> Amelectronie reading room that contains the information listed above as well as repeatedly
requested records created after November 1, 1996.

‘To accompany this initial research, a letter requesting information regarding the current status of and future
plans for meeting the EFOTA amendments was sent to 84 agencies and commissions. Federal agency FOIA
officers listed by the Office of Information and Privacy of the U.S. Department of Justice on their FOIA
‘home page were used as a basis for this mailing list. Almost two-thirds of the agencies contacted considered
‘our letter for information a forma! FOIA request and processed it as such. Of the agencies that considered
ur leer a FOIA request, about one-half sent a standard form lerter acknowledging our request, but sent
‘no additional information. The other half either ceplied directly or sent the form letter and followed-up with.
information later.

‘The letter asked agencies to point out where we could electronically locate the four major categories of
information listed above. In addition, the letter asked agency FOIA officers how they have identified which
records fall into the “have become or are likely to become the subject of subsequent requests for
substantially the same records” category.

‘When new information regarding EFOLA electronic dissemination was revealed from the agency responses,
‘we revisited these web sites for a second look, In some cases, agencies that we initially believed were not in
compliance did have the proper information, but the information was inaccessible from the agency’s main
hhome page or difficutt for us to locate on the frst attempt.

Inall cases, we approached the web sites from the perspective of an average member of the public
searching for information. In this way, we were able to separate those agencies that took the time to provide
‘meaningful public access to their information from those that simply implemented the amendments to fulfill
their obligation as quickly as possible.

Our research focused exclusively on whether agencies have made the materials required by EFOTA
available on the Internet; it did not examine if agencies have made these materials available in other formats
or media

Although we considered listing which agencies fell into cach category, presenting the results in this manner
seems more lke a finger-pointing exercise than a valuable discussion of the success and failures of
implementation. Because many agencies that did not meet all of the requirements had some positive
elements of electronic dissemination, and others that fulfilled most ofthe requirements did o in only the
‘most minimal manner, the categories were useful only for providing an overall picture of compliance.

OMB Watch -2-


vi

EFOIA also addresses the timing of agency responses to
FOIA requests and agency backlogs of FOIA requests with
provisions that increase the initial time for responding to FOIA
requests from 10 to 20 working days; authorize agencies to
process FOIA requests in multiple tracks; encourage agencies to

negotiate the scope of FOIA requests and response times with

requesters; and establish higher standards governing court-
ordered extensions of time for FOIA cases in litigation. Another
important provision establishes a mechanism for the "expedited
processing" of FOIA requests filed by members of the news media.
Additionally, EFOIA requires agencies to maintain a FOIA
reference guide for use by potential FOIA requesters, and

institutes a new reporting scheme for the annual FOIA reporte

that are filed by all agencies.

Under the Attorney General's leadership, we have worked
diligently to implement EFOIA and reduce FOIA backlogs within the
Department of Justice. We have revised our FOIA and Privacy Act
regulations. We have prepared a FOIA Reference Guide, a user-
friendly manual that provides helpful information to the public
regarding available resources and specific procedures for making

FOIA requests to the Department. It also identifies each


-9-

respect to the new obligations on agencies to conduct electronic

searches according to FOIA requesters' specifications. These are

the major electronic record provisions of the amendments
pertaining to the handling of FOIA requests. Nor do there appear
to have been significant difficulties or disagreements regarding
use of the new “expedited processing" provision of EFOIA by
members of the news media. We continue to encourage agencies to
work as cooperatively as possible with all FOIA requesters in
matters pertaining to,the timing of agency responses to FOIA

requests.

To be sure, though, it has been observed that many
agencies have had a more difficult time in their development of
web sites implementing the electronic availability provisions of
EFOIA. This is an area of FOIA administration that is relatively
unfamiliar for Federal agencies, and the process of individual
agency web site development for the most efficient implementation
of EFOIA's electronic availability provisions is a continuing
one. To further facilitate this process, the Department is
planning to hold a FOIA Officers Conference -- a gathering of the
principal FOIA administrative officers of Federal agencies --

next month. At thie conference, we plan to review particular


5

Mr. Horn The routine of this committee is to bring up the first
panel, to swear them in: that the testimony they are about to give
us is the truth, the whole truth and nothing but the truth. When
we introduce each witness in the order in which they are on the
agenda, their statement automatically goes into the record without
objection. We would appreciate it if the witnesses summarize their
testimonies and hit the high points, because the staff and the mem-
bers have read the testimony in advance, and then we can get
down to a dialog when all four witnesses on the first panel are fin-
ished with their statement.

So if the first panel will come forward, we will swear in the wit-
nesses and begin. Ms. McDermott, Mr. Tankersley, Mr. Riccio, Ms.
Kirtley. Everybody has their sign in front of them. If you would,
stand up and raise your right hands.

[Witnesses sworn.]

Mr. Horn. The clerk will note that all four witnesses have af-
firmed the oath. Please be seated.

We will first have Ms. Patrice McDermott, information policy an-
alyst of OMB Watch. Ms. McDermott.

STATEMENTS OF PATRICE McDERMOTT, INFORMATION POL-
ICY ANALYST, OMB WATCH; MICHAEL TANKERSLEY, SENIOR
STAFF ATTORNEY, PUBLIC CITIZEN LITIGATION GROUP; JIM
RICCIO, STAFF ATTORNEY, CRITICAL MASS ENERGY
PROJECT, PUBLIC CITIZEN; AND JANE KIRTLEY, EXECUTIVE
DIRECTOR, REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS

Ms. McDermott. Thank you, Mr. Chairman.

OMB Watch is a nonprofit research and advocacy organization
that works to encourage greater public participation in Federal
Government decisionmaking and to promote a more open, respon-
sive, and accountable government. We have been engaged in the
arena of public access to public information since the mid-1980’s
and have issued a number of reports in this area.

Pursuant to your request, Mr. Chairman, OMB Watch has not
received any Federal grants or contracts in the current and 2 pre-
ceding years, nor are we representing any entity today that has re-
ceived such funds. We appreciate the opportunity to testify.

I am here today to talk about the report we issued in April of
this year—Arming the People “with the power knowledge gives.”
The name of our report may sound somewhat inflammatory, but it
comes from the famous quotation that you quoted in your opening
remarks, Mr. Chairman. We believe it is the intent of Congress,
with the 1996 EFOIA Amendments to the Freedom of Information
Act, to assist the American people in arming themselves with the
power of knowledge about the activities of their government.

Before I go into the details of our study and our recommenda-
tions, I want to clarify that OMB Watch conducted this study from
our commitment to the public’s right to know, its right to informa-
tion needed to make informed personal, social, ani litical deci-
sions, and our belief that the government has an affirmative re-
sponsibility to make information available and readily accessible to
all the public. It was not, and is not, our intent to “bash” Federal
Government agencies. It is our intent to hold them accountable to


lll

The Department 1s also developing a single source inventory and index of all major
information systems. This inventory will be further developed by incorporating key identifying
information from all major Department systems within the framework of the Government
Information Locator Service (GILS), which will be clearly accessible through a revised DOE
Home Page. The Department's GILS application is planned to be operational this month.
Follow-on activities to assure that all major information systems are identified through the

GILS application are planned for the third and fourth quarter of this fiscal year.

AAt this point, I believe we have made substantial progress towards compliance with all the
Electronic FOIA requirements to date and anticipate to be in compliance with future

requirements as they come into effect.

This completes my statement, Mr. Chairman. I would be pleased to answer any questions you

may have.


81

aspects of EFOIA's implementation, we strongly encouraged all
agencies to develop web sites in order to most efficiently meet
EFOIA's new electronic availability requirements. We drew
particular attention to distinctions between an agency's
conventional "paper" reading room and its new "electronic"

reading room under EFOIA.

Second, we have addressed a variety of questions about
the provisions of EFOIA and its implementation as they have been
raised by agency FOIA personnel. We have done so through the
Department's FOIA Counselor service, through which we reapond to
agency questions by telephone. We also have disseminated written
guidance on more than two dozen amendment implementation
questions through our FOIA Update publication, which is publicly
available through our web site. We have published a compilation
of implementation guidance points for the ready reference of all
agency FOIA personnel, and have conducted several governmentwide
and public training sessions on the amendments, including a
conference for principal agency FOIA officers to review EFOIA
implementation questions. We revised our "Justice Department

all EFOIA

Guide to the Freedom of Information Act" to addrei

provisions. We added a new section to this "FOIA Guide" dealing


107

the Department’s progress, and it made recommendations for additional improvement toward its
‘goal of responsible openness in September 1997. The Panel’s recommendations focused on

three general areas:

. The Classification and Declassification Processes
. Improving the Accessibility of Information

* Changing the Culture of Secrecy

While all three of these areas are important, the one most directly related to the FOIA program is
improving public accessibility. For example, one of the Panel’s recommendations on improving
accessibility included continuation of the development and dissemination of “Finding Aids.” In
response, the Department is enhancing public access to its information and records in a number
of ways, including the redesign of its Web Home Page to provide better pointers to its “on-line”
document sources and identifying the feasibility of putting existing hard copy finding aids on the

Internet.

This commitment to openness has resulted in dramatic improvements in the Freedom of
Information Act program. In 1994, our backlog at headquarters was 658 pending cases; a
substantial number of which pre-dated 1990. In addition, we could not rely on our data
concerning median case processing times and average case age. Our delivery system was so

sluggish that requesters sometimes gave up expecting that a response would ever be made.

This situation has been reversed. Now, we can accurately report a reduction of more than one-

third in the size of the headquarters case backlog from 1994. We can also report the elimination

2


92

NEEDS OF REQUESTORS ON A MORE TIMELY

BASIS.

WE HAVE FOCUSED HARD ON OUR OLDEST CASES

TO GET THEM PROCESSED AND CLOSED.

WE HAVE ESTABLISHED A HELP DESK TO
EXPEDITE THE PROCESSING OF FBI RECORDS
HELD BY OTHER AGENCIES SO THAT THEIR FOIA
REQUESTS ARE NOT DELAYED BY THE FBI. IN
SOME INSTANCES THIS DESK HAS REDUCED
TURNAROUND TIME FROM YEARS TO DAYS OR

HOURS.

WE HAVE REORGANIZED AND STREAMLINED
OPERATIONS TO SUBSTANTIALLY INCREASE THE

PRODUCTIVITY OF THE ANALYSTS WHO PROCESS

6


60

purpose” is simply not considered in the balance.

Congressional clarification was badly needed. Rigid
adherence to the courts’ Reporters Committee interpretation has
very nearly crippled the use of the Act, resulting in senseless
decisions that shield government-held information from public
scrutiny.

For example, when former hostage Terry Anderson, the
Associated Press reporter held by the Islamic Jihad for seven
years, asked for records concerning his captivity from the FBI
and other agencies, he was told that because disclosure would
intrude upon the personal privacy of his captors, he must first
obtain their written waiver of their “privacy” interests before
the information would be provided. The government has dropped
its very typical privacy claims in this case (the records
continue to be withheld as “classified"), probably in response to
public disdain for this transparently absurd decision.

We have received hundreds of inquiries from reporters who
have been unable to report adequately on important public issues
because the federal government overuses the privacy exemptions
Reporters are denied the names of persons who offer their views
to the government in response to an agency call for comments.
They have been denied land appraisal records for property
purchased from the government, lists of prisoners, and records of
persons who default on huge government loans. One reporter told

us that an agency even redacted names on public court decisions


56

Mr. Horn. Well, we thank you very much We will start with the
last point you made, and that is the FOIA was designed for public
rather than private purposes, and in your written testimony you
have just cited the O’Kane case as an example of the courts ignor-
ing the intent of Congress and giving preference to public purposes.

Now, how did the court justify ignoring the clear intent of Con-
gress? .

Ms. KirTLEY. I think it was that the court found that because
this was simply something that was stated in the findings rather
than in the legislation, or as an amendment to the existing legisla-
tion, it did not need to give the same weight to it that I think all
of us had hoped that it would. I would hate to think that intent
just stands or falls on where you place it in the report, but frankly,
the court did not seem convinced by the fact that it was in the find-
ing sand was therefore sufficient to overrule the Supreme Court’s

‘ing.

Mr. Horn. In other words, that problem is basically solved by
further amendments that put it into the law rather than the re-
port?

Ms. KirTLEY. Well, we are hopeful that the eleventh circuit
might correct this in its review of this case; but yes, in terms of
the legislative solution, I think that is probably the answer.

Mr. Horn. Well, I can’t really blame the courts, because often
Congress paves over things in conference between the other body
and us, and if we are serious, we should put it into the law.

Ms. KirTLEY. There is something to be said for that. On the
other hand, I think the language and the findings were very clear.
I think the courts will read into this what they want until they get
a clear mandate.

Mr. Horn. To your knowledge, are there other cases like the
O'Kane case that are in process?

Ms. KirtTLey. Yes. There are several more that are percolating
around and we are trying to keep an eye on them. At this point
they are all at the district court level.

Mr. Horn. Could you give us an insert for the record?

Ms. KIRTLEY. Yes.

(The information referred to follows:]


18
‘TESTIMONY BEFORE THE SUBCOMMITTEE ON
GOVERNMENT MANAGEMENT, INFORMATION AND TECHNOLOGY
Implementation of the Electronic Freedom of Information Act Amendments of 1996
Michael E. Tankersley
Senior Staff Attorney
Public Citizen Litigation Group
June 9, 1998
Introduction

Mr, Chairman and members of the Subcommittee, thank you for the opportunity to appear
before you today to discuss the implementation of the Electronic Freedom of Information Act
Amendments of 1996. The 1996 Amendments recognize that the proliferation of
telecommunications technologies allows the public to obtain access to more information, more
quickly, than has ever been possible before. The promise of the 1996 Amendments, however,
remains largely unfulfilled because many agencies have been slow to implement the most dramatic
and important improvements in the FOIA that Congress enacted in 1996.

Public Citizen is particularly familiar with the importance of the FOIA, and its application
to electronic records. Public Citizen is a nonprofit consumer organization that, since its founding.
in 1971, has made extensive use of the FOIA to obtain records to support its educational programs
‘and advocacy efforts, Public Citizen Litigation Group was founded by Ralph Nader and Alan
Morrison in 1992. Over the last twenty-seven years, Litigation Group attorneys have represented
FOIA requesters in approximately 300 lawsuits challenging government secrecy, far more cases
than any other law firm in the nation. in recent years, much of our work has involved securing
‘access to records created and maintained by agencies in electronic form. For example, we
represented the historians, librarians, researchers and journalists who challenged the government's
policies concerning electronic records in Armstrong v. Executive Office of the President and Public

1


47

clearance process at the Office of Management and Budget. A
majority of agencies have not even issued proposed implementing
regulations.

We are told that some agencies still delete E-mail as if it
were not a federal record. Some who now realize that electronic
mail is significant still print it out in order to respond to FOI
requests, rather than provide it in electronic format asked for
by many requesters.

Most have not yet established the comprehensive electronic
reading rooms the Act anticipated. Existing electronic reading
rooms are often information poor.

Backlogs are the rule rather than the exception. The new 20-
day time limit, which was supposed to be "meaningful" unlike its
10-day predecessor (which was honored in the breach), has caused
no noticeable improvement in agency response times. The only
difference is that now a requester receives a phone call or
letter saying the agency can’t get you the records within 20
days, as opposed to 10 days in the past. It still takes weeks or
months or years to finally get the records.

The EFOIA has triggered core reforms in electronic processing

But all is not business as usual. We already have seen some
dramatic and core changes to the ways in which FOI requests are
handled in the agencies, and we are certain that more will follow
-- quickly we hope.

We have watched some experienced agency FOI officers respond

enthusiastically to the mandates of the Act, building robust Web


51

when the public needs to be promptly informed about a matter of
urgency, such as a rapidly approaching governmental decision.

Unfortunately, we know of few cases in which reporters
actually have been granted expedited review to date. This may be
because most agencies are behind in adopting implementing
regulations.

Additionally, we have not noticed the pace quicken as a
result of the multitrack processing provisions, although it
appears that requirements for agencies to communicate with
requesters to suggest how they can be placed on a “fast track"
have been useful to the reporters with whom we deal. Some
agencies are choosing not to avail themselves of multitrack
processing.

As we stated earlier, we do not believe that agencies are
complying with the 20-day time limits or that they have made any
effective changes to reduce processing times.

We hope that Congress will keep a close eye on provisions
intended to reduce delays, and take whatever action is necessary
to ensure that its laudable intentions to reduce or eliminate
delays will be realized.

Executive branch, courts have ignored critical "finding"

Finally, we are very disappointed that Congress’ finding in
this legislation that the FOI Act was intended to serve “any
purpose" has been virtually ignored by both the Executive Branch
and the courts.

As confirmed by the Amendment’s legislative history, the


not an inconsiderable reduction, the Attorney General remains
greatly concerned about the size of the INS backlog. In an
effort to further reduce its backlog, INS recently launched its
FOIA Information Processing System, which should streamline its

FOIA operations through automation.

Because the administration of the Freedom of
Information Act is decentralized throughout the Executive Branch,
each individual Federal agency, including the Department of
Justice, is responsible for implementing the FOIA and the
provisions of EFOIA within it. As you know, the Department of
Justice aleo works to encourage governmentwide compliance with
the FOIA, in accordance with subsection (e) of the Act, and it
has taken a number of steps to share its expertise to aid other
agencies in the implementation of EFOIA. They include the

following:

First, upon enactment of EFOIA, the Department
disseminated to all agencies, through our FOIA Update
publication, detailed discussions of the new statutory provisions
and a chart outlining the different effective dates of those

provisions. In discussing both the substantive and procedural


US Department of Justice
Office of Informanon and Privacy

‘Washington, D.C 20530

142

FOIA Training Opportunities

DEPARTMENT OF JUSTICE

tact: Monica Veney, (202) 616-6700.
No charge.

Office of Information and Privacy:
“Annual Update Seminar on the Free-
dom of information Act," October 16,
9:00 a.m. to 1:00 p.m., FBI Main
‘Avditorium, 10th Street and Penn-
sylvania Avenve, N.W., Washington,
D.C. Contact: Bertina Adams, (202)
‘514-1010, No charge.

Legal Education Institute: “introduc

ton te Fresom of Information

Act," November 13, 8 15 am 10 2
Pm , 600 E Street, NW, Washing-
ton, DC Contact. Monica Veney,
(202) 616-6700 No charge

Office of Information and Privacy:
“Advanced Seminar on the Freedom
of Information Act,” December 3,
600 E Street, N.W., Washington,
D.C. Contact: Bertina’ Adams, (202)
‘514-1010. No charge.

Office of Information and Privacy:
“Freedom of Information Act Admin-
istrative Forum,” December 4, 600 E
‘Street, N.W., Washington, D.C. Con
tact: Bertina Adams, (202) 514-1010.
No charge.

GRADUATE SCHOOL, USDA

Southeast Training Center: “Freedom
‘of Information and Privacy Act Work-
shop,” September 22-23, Atlanta,
GA. Contact: Registration Unit, (404)
331-3513. Cost: $315.

“Information Access Laws,” Octo-
ber 1617, 600 Maryland ‘Avenue,

SW, Washington, DC Contact
Enc Fredfeld, (202) 401-9194, Ext
9592 Cost $325

Midwest Traming Center "Freedom
of Information and Privacy Act Work-
shop,” October 30-31, 230 South
Dearbom Street, Chicago, IL. Con-
tact: Joseph Antonik, (312) 353-2919.
Cost: $325.

"The Freedom of Information Act
and the Privacy Act." a correspond-
tence course scheduled to begin at any
time, Contact: Cc Pro-
‘gram, (202) 720-7123. Cost: $201.

NONGOVERNMENT

American Society of Access Profes-
sionals: "Business Information Day/
‘Annual Symposium,” November 17-
19, Doubletree Hotel, 1750 Rockville
Pike, Rockville, MD. Contact: Joyce
Gary, (202) 223-9669, Cost of Busi-
ness Day only: $110 (members); $130
(nonmembers). Cost of Symposium:
$215 (members); $235 (nonmembers).


185

US Department of Justice
Office of Information and Privacy

Vol XVIII, No. 3

@© 4 UPDATE

Agencies Develop Web Sites for FOIA

Under the provisions of the Electronic Freedom of In-
formation Act Amendments of 1996, 5 U.S.C.A. $552(a)(2)
(West 1996 & Supp. 1997), all federal departments and
agencies are required, as of November | ofthis year, 1o use
‘electronic information technology to enhance the public
availability of their FOIA “reading room” records. At the
‘same time, throughout the executive branch of the federal
goverment, federal agencies are now rapidly developing
electronic sites on the Intemet and World Wide Web for a
wide variety of different purposes.

Spurred by the Electronic FOIA amendments, and by
the potential efficiency of providing FOIA-telated informa:
tion online and using “electronic reading rooms” on the
World Wide Web, agencies have increasingly incorporated
FOIA considerations into their Web site design and develop-
‘ment. All agencies should be developing World Wide Web
sites to include one or more electronic “home pages” for
FOIA purposes, and there are many models that can be
looked to in this process.

National Aeronautics and Space Administration

clicking on the area of interest. For example, a user can
move from the Lewis Research Center to the Kennedy
Space Center and from there back to NASA Headquarters
with just a click. There is a separate entry on making a
FOIA request that appears somewhere on every screen; a
user does not have to retum to the FOIA home page to find
it

NASA's FOIA home page provides basic instructions
‘on obtaining information through the FOIA. Requesters are
advised to provide as much information as possible about
the documents they seek in order to facilitate record proc:
essing. An electronic "link" is provided toa list of NASA's

On Agency Practice

various FOIA offices--with names of FOIA officers, tcle-
phone numbers, and fax numbers. There is also a fink to
NASA’s FOIA regulations published in the Federal Regis-
ter. NASA also provides links to government reference ma-
terials that may be of interest to a requester.

Perhaps the most advanced agency in the
of its World Wide Web site, and in its use for FOIA pur-
poses, is the National Aeronautics and Space Administra-
tion. NASA was one of the first agencies to develop a
“FOIA home page.” The development of a FOIA home
page benefits both FOIA requesters and the agency. For
example, when members of the public contact agencies with
basic “how to* questions about the FOLA administrative
process, these questions consume the time and attention of
FOIA personnel. Now, potential FOIA requesters whohave
access to the World Wide Web can find basic, instructional
{information on how to submit a FOIA request through tse
of an agency's FOIA home page.

To reach NASA's FOIA home page. the user must go
toNASA’s World Wide Web site (at hitp://www.nasa. gov),
select “Organization,” scroli down to select "NASA HQ,"
and then select “Freedom of Information.” Listed in the
central body of NASA's FOIA home page are the main top-
ics of interest applicable to the entire agency. Listed ver-
tically in the expanded left margin of the page are the vari-
‘ous NASA space flight centers, research centers, and test
facilites. Each will eventually have its own subsidiary
FOIA home page and electronic reading root.

NASA’s FOIA bome page is organized so that the user
ean move from one subsidiary home page to another by

NASA He ‘has had an reading room
‘operational since May 1 of this year. In addition to being
the location at which NASA maintains its newly created
FOIA reading room records, it has a link to the Government
Information Locator System (GILS), which is a collection of
agency-based information ocators. NASA’ electronic read-
ing room also has a link to NASA's “Directives Library."
its “Mixed Fleet Manifest,” “UFO Information,” and *Im-
‘pact Card Information.” The latter entry, for example, lists
the names, telephone numbers, and organizations of NASA
‘officials who hold this government credit card and have the
authority to procure goods and services with it. Before that
information went online, NASA received several FOIA re-
‘quests per week for it. Now, NASA may simply refer re-
‘questers to the pertinent Web page for ready access.
Department of Justice
The Department of Justice bas formed a core team of
‘computer services personne! and library personnel to design
and manage the content of its World Wide Web site. This
team has been joined by a representative from each of the
Justice 1's components in order to develop guide-
lines for its Web site and home pages. Additionally, each
has designated a “contem manager” who is
responsible for the accuracy, consistency. and accessibility
Cont'd on next page



13

Amendments to FOIA Regulations
Although EFOIA was enacted over 18 months ago, only a handful of agencies have proposed the

azendientsto thir FOIA regulations tht ae necessary to implement th at, and even fewer agencies
have actually adopred regulations. These regulations generally contain some statement that reflects what
qualifies as “552(a)(2)” public information available through FOLA, including their selection eritria for

repeatedly/frequently requested

Above and Beyond the Amendments

EFOIA Information Is Online, And It's Accessible

Fray. agencies such as the Veterans Administration (VA) have provided broad access to the public by
‘both audio-visual and text-only sites for their EFOIA information. By offering both options,

the VA has included members ofthe public who donot have acess to high-speed connection or high-ceh

equipment

Submitting FOIA Requests Online

‘Several forward-thinking agencies have chosen not only to describe the process of requesting information in
their guidebooks, but also provide a form for requesting this information online. Since requests for
information under the FOIA must be in writing, these agencies have made the process much easier for
members of the public by offering online forms. EPA’s Region 5 office offers this option, as does the Small
Business Administration, the Farm Credit Administration, the National Science Foundation, the General
Services Administration and many others. While this option is not required under EFOIA, it only makes
sense to streamline the process of requesting information from the federal government. Those agencies that
have made this extra effort seem to truly have the public's needs in mind.

OMB Watch's Policy Recommendations

1, The goal of EFOIA should be to make so much information publicly available online that
Freedom of Information Act Requests become an avenue of last resort. In this same vein, the
‘goal should be to provide the information directly online to as great an extent as feasible.

2. OMB has recently provided guidance to agencies that fulfills the letter of the EFOIA amendments.
To make this guidance effective, OMB must also develop a plan for how EFOIA fits into the
overall framework of federal information policy and, in particular, public access

3. Congress must allocate appropriate levels of funding for ongoing implementation of the
EFOIA amendments. It is difficult for agencies to make EFOIA a priority when monies must be
diverted from other important projects.

4, Congress must search for new ways to impl tation of these throug!
‘an enforcement mechanism. Currently, agencies that are not in compliance are not penalized,

5. Agencies with decentralized responsibility for EFOIA implementation must provide a
procedure for the implementation of EFOIA . While we are mindful of the organizational need
to decentralize responsibility for EFOIA, this approach adds additional risk to comprehensive
implementation. 1f “parent” agencies continue to take a “hands off” approach to EFOIA
“obligations, the public will continue to receive uneven access to information across the agencies,

OMB Watch -6-


‘Summer 1997

FOIA UPDATE

137

U.S. Department of Justice
Office of Information and Privacy

FOIA UPDATE

OIP Guidance
Guidelines for Agency Preparation and
Submission of Annual FOIA Reports

{n enacting the Electronic Freedom of information
‘Act Amendments of 1996, Pub. L. No. 104-231, 110

the Freedom of Information Act, subsection (e), that per-
tains 0 the submission of annual reports by federal agen-
cies on their administration of the Act. Congress revised.
the list of basic required elements for annual FOIA re-
pons, altered the timetable and procedure for submitting
them, and provided that the Department of Justice, in
consultation with the Office of Management and Budget,
would issue these guidelines for annual FOIA report prep-
aration and submission. See 5 U.S.C. § $52(0), a8
amended by Electronic Freedom of Information Act
‘Amendments of 1996, 5 U.S.C.A. § 552(e) (West Supp.
1997). Congress also addressed this subject in the House
Report accompanying the amendments. See H.R. Rep.
No. 104-795, at 27-29 (1996). These changes come into
effect for the annual FOIA reports that will be prepared
by federal agencies for the 1998 fiscal year. See FOIA
‘Update, Fall 1996, at 11 (describing stanutory changes).

‘The following basic required elements for annual
FOIA repor are specified in the starute, as amended:

(The number of requests for records pending before
the agency as of the end of the fiscal year.

(2) The median number of days that such requests had
‘been pending before the agency as of that date

(3) The number of requests for records received by the
agency,

(4) The number of requests that the agency processed,

(5) The median number of days taken by the agency 0
process different types of requests.

(6) The momber of determinations made by the agency
rot to comply with requests for records made to the
agency.

(1) The reasons for each such determination.

(8) A complete list of all starutes that the agency relies

‘upon to authorize the agency (o withhold information
under subsection (b)(3).

(9) A description of whether a court has upheld the de-
cision of the agency to withhold information under
‘each such starute

(20) A concise description of the scope of any information
‘withheld under each such statute,

(11) The number of appeals made by persons under sub-
section (a6).

(12) The result of such appeals.

(3) The reason for the action upon each appeal that re-
sults in a denial of information.

(14) The total amount of fees collected by the agency for
requests.

(15) The number of full-time staff of the agency devoted
to processing requests for records under the Act.

(16) The total amount expended by the agency for proc-
cessing such requests.

ANNUAL REPORT GUIDANCE OUTLINE,
So that all federal agencies’ annual FOIA reports fol-

Jow a relatively vniform approach and “similar format”

for comparison purposes, H.R. Rep. No. 104-795, at 29

(1996), all agencies should prepare them along the lines

of the following content outline.

1. Basic Information Regarding Report

A.

Ne, address, and telephone sumber of
Perot) o be comacted wih question ou the
report.

B. Electronic address for report on the World Wide
Web.

C. How to obtain a copy of the report in paper form.


55

BIOGRAPHY

JANE E. KIRTLEY is Executive Director of The Reporters
committee for Freedom of the Press, a voluntary, unincorporated
association of reporters and editors founded in’1970 which is
devoted to protecting the First Amendment and freedom of
information interests of the news media. Since 1985 she has
overseen the legal defense and publications efforts of the
Reporters Committee, as well as supervising the group’s
fund-raising activities. Ms. Kirtley also edits the Committee’s
quarterly magazine, The News Media & The Law.

Ms. Kirtley has prepared numerous friend-of-the-court briefs
on behalf of the Reporters Committee and other news media
organizations, including Reno v. ACLU, Hustler Magazine v.
Falwell, The Florida Star v. B.J.F., and Dept. of Justice v. Tax
Analysts. She writes and speaks frequently on media law and
freedom of information issues in the United states and abroad,
including in Russia, Mongolia, Belarus, Bulgaria, Latvia,
Romania, Poland, the Czech Republic, Japan, Chile, the United
Kingdom and Canada. Ms. Kirtley also writes "The Press and the
Law" column each month for American Journalism Review. Ms.
Kirtley has appeared on nationally-broadcast programs such as
Nightline, All Things Considered, The Jim Lehrer News Hour, Good
Morning America, Today, Donahue!, Crossfire, Burden of Proof,
CNN & Co. and the BBC’s Law in Action. She has been an adjunct
professor with the American University School of Communications
Graduate Program since 1989.

Before coming to the Reporters Committee in 1984, Ms.
Kirtley was associated with the law firm of Nixon, Hargrave,
Devans & Doyle. She is a member of the New York, District of
columbia and Virginia bars. Ms. Kirtley worked as a reporter for
the Evansville Press, the Oak Ridger and the Nashville Banner.

Ms, Kirtley obtained her J.D. degree in 1979 from Vanderbilt
University School of Law, where she served as Executive Articles
Editor of the Vanderbilt Journal of Transnational Law. She
received bachelor’s and master’s degrees from Northwestern
University’s Medill School of Journalism in 1975 and 1976.

She serves on many advisory boards and committees, including
the Freedom Forum’s First Amendment Center, the ABA National
Conference of Lawyers and Representatives of the Media, the Libel
Defense Resource Center, the Student Press Law Center and the
editorial board of Government Information Quarterly. In 1993, Ms.
Kirtley received the Distinguished Service Award from the
Newspaper Division of the Association for Education in Journalism
and Mass Communication, and in 1994, The John Peter Zenger Award
for Freedom of the Press and the People’s Right to Know from the
University of Arizona. In 1996, she was one of 24 individuals
inducted into The FOIA Hall of Fame, established to commemorate
the 30th anniversary of the signing of the Freedom of Information
Act.


2

important as the checks and balances written into our Constitu-
tion.

The Electronic Freedom of Information Act Amendments of 1996
made two major changes to the Freedom of Information Act. One,
the amendments provided for an increase in affirmative disclosures
of government information. That is, the amended law requires
agencies to make certain categories of information available, in-
cluding on the internet, without waiting for individual Freedom of
Information requests. Two, the amendments made changes to the
Freedom of Information Act requesting process itself in an effort to
make FOIA a more effective tool for accessing government informa-
tion.

We wish to examine the implementation of the various provisions
in the 1996 amendments that promote these two broad goals. In
terms of affirmative disclosures, for example, the 1996 amend-
ments require that agencies create electronic reading rooms on the
internet. Agencies must place on-line a variety of documents, in-
cluding those that are likely to be repeatedly requested under the
Freedom of Information Act. This provision should have the effect
of satisfying many people’s information needs without going
through the burden of the FOIA process, but are agencies com-
plying with this and other affirmative disclosure requirements? A
report we will discuss today by OMB Watch suggests that too many
are not.

In terms of improving the FOIA process itself, the 1996 amend-
ments require that agencies make available indices of their major
information systems. This would have the effect of allowing re-
questers to make much more precise requests. But, again, prelimi-
nary indications suggest that agency compliance has been spotty,
at best.

Does anyone doubt the importance of citizen participation in gov-
ernment accountability? I hope not. But if there are barriers to
openness and access to government information, it is time to find
them and it is time to remove them.

We have two panels today. On the first are two public interest
groups, a journalist and a researcher. They will tell us about how
they use government information, why it is important, and how ac-
cessible it is under current practices.

On the second panel are representatives from four Federal agen-
cies. They will tell us about implementing the 1996 amendments
to the Freedom of Information Act.

We thank all of our witnesses for being here, and we look for-
ward to the testimony.

[The prepared statement of Hon. Stephen Horn follows:]


72

format, we are afraid that a lot of information will be lost, and that
is of great concern to us since it is those documents that determine
whether or not a reactor is safe.

Mr. Horn. Are you worried then that in moving this printed and
paper record around that you won’t have that trend of information
from an earlier year?

Mr. Riccio. It is very important that that information remain in
one place for litigation or for other purposes, that it still exists, and
I believe the intent is to try to do away with it. They are going to
try to shift it over to electronic format, but still, having an ‘under.
lying library is imperative.

Mr. Horn. Ms. Kirtley.

Ms. KIRTLEY. Well, I think everything flows from the lack of im-
plementing regulations to a great extent, and since the people I
represent are journalists, I have to say that we still have as our
biggest complaints: delays and the lack of speed in processing.
Again, there was a lot of promise in these EFOIA amendments,
multitrack processing and so forth that just hasn’t come into play
yet, and I think it is mostly because the regulations just aren’t
there.

Mr. Horn. Do we know—well, I was just talking to Mr. Hynes
who is working on this for us. Do we know the degree to which
these agencies have pursued multitrack processing?

Ms. KirTLey. Of those that have put out implementing regula.
tions, I believe the majority of them have entertained it as at least
a possibility, and in a couple of cases they are actually doing it. But
a couple of agencies —we just filed comments, I think, with Agri-
culture the other day and it doesn’t seem to have included that in
its proposed regulations. Of course, it is not mandatory, but I think
it serves everybody’s interest to try to get it into play.

Mr. Horn. Any other ideas on what is the biggest problem we
need to deal with and put it in the law rather than in the reports?

Ms. McDErRmoTt. Enforcement.

Mr. Horn. Yes, enforcement is——

Ms. KirTLEY. Yes. I recall when we were dealing with the issue
of the expansion of the processing time to 20 days, a lot of the dis-
cussion was, it is going to be 20 days and we are really going to
mean it, but there doesn’t really seem to be any enforcement provi-
sion in the amendments that gives that any teeth, so once again,
We are dealing with a provision that is being honored in the

reach,

Mr. Horn. Very good. Are there any other things that we did not
bring up either in the written testimony or in questions? What are
we missing? Anything?

Well, if you think of it on the way back to the office today, let
us know, and we will put it at this point in the record without ob-
jection.

Ms. KirTLEY. Thank you.

Mr. Horn. Well, we thank you all for coming. You have done
some really firm, fine examples in your testimony and we appre-
ciate that. Thank you.

Ms. McDeErmo7?. Thank you very much.

Mr. Horn. Next we have Mr. Richard Huff, Codirector, Office of
Information and Privacy, Department of Justice; Mr. John


27

them available on the Internet in an “Electronic Reading Room,” or thorough some other
electronic means. 5 U.S.C. § 552(a)(2)(D).

‘The significant benefits that these affirmative disclosure provisions provide for public
‘acoess to agency records cannot be overstated. Previously, when an agency released a government
document of interest to many members of the public in response to a FOIA request, the material
‘would be available only to the individual journalist, researcher or other requester who submitted
the request (unless he or she decided to share it with others). Other members of the public seeking
these records would have to submit separate requests and wait weeks or months for a response,
or, alternatively, would be required to travel to Washington to conduct research in the agency's
“Reading Room." If the 1996 Amendments are properly implemented, however, significant
agency records’ created after November 1, 1996 will be available to anyone with a desktop
computer, and the time required to obtain the record should be no longer than it takes a modem
to transfer the information to the individual's desk.

‘The promise of these affirmative disclosure provisions, however, has not been fully
realized for a number of reasons. The principal problem is reflected in the report recently released
by OMB Watch on the Implementation of the 1996 "EFOTA” Amendments to the Freedom of
Information Act."" Many agencies have not established Electronic Reading Rooms and, even
where such Reading Rooms exist, the information is sometimes arranged in ways that are
confusing to the public or lack adequate search engines. A mixture of funding and attitude appear
to be at the root of this problem. Agencies that have failed to establish Electronic Reading Rooms

“ Jennifer J. Henderson and Patrice McDermott, ‘nming the People “.. with the-powet

‘Amendments tothe Freedom of Information Act at 10-11 (April 1998).
10



70

Mr. Horn. Does anyone else have any experience on this, either
as a friend of the court or actual litigant? Well, we will rely on your
list and the American Law Division to search what is going on out
there in the desert of law.

Let me ask Ms. McDermott, in your report, in your written testi-
mony, you mentioned that two-thirds of the Federal agencies treat-
ed your survey as a formal FOIA request. What does that really re-
veal? Did they put you in line for 4 years?

Ms. McDERMOTT. Well, half of them didn’t get back to us at all.
Some of them, we called and said, we think you misunderstood. It
was partly our fault by the way we phrased the letter. I mean, it
was open to that interpretation. One of the immediate interpreta-
tions we took was that they didn’t read it very carefully, because
if you read on, it was fairly clear what we were asking for; and it
was not a request for records, it was a request for information
about their implementation. But some of them we still have not
heard back from, so I think it is in a backlog somewhere, and 5
years from now we will.

Mr. Horn. Well, it is nice to know that it is not only Congress
they spend their time not replying to, but it is also the average cit-
izen who should be replied to.

You suggested an alternative enforcement mechanism. Could you
elaborate on that? What did you have in mind?

Ms. McDERMOTT. We have been trying to puzzle that through,
and I know that your committee, your subcommittee, has held
hearings in the past on separating the various portions of OMB,
the management and the budget portion.

We have been very concerned about the OIRA, the Office of In-
formation and Regulatory Affairs, because historically the regu-
latory aspect of that has taken very high precedence over the infor-
mation aspect of that office. But it has been a puzzle to us at OMB
Watch, and among other public interest groups, just how this
should be handled in terms of greater enforcement and oversight
of information policy.

OMB historically has not been very good on information policy.
One agency person has described them as a launch-and-forget orga-
nization in terms of information issues. So, we have concerns about.
placing it at OMB, but there is really no other place in the execu-
tive branch where it appropriately belongs.

The other organizations or other interorganizational councils that
are developing have no public accountability, such as the Chief In-
formation Officers’ Council and some of the others, so we don’t rec-
ommend that. So we are puzzled ourselves. We really don’t have
a good, firm recommendation, but we would like to see the informa-
tion portion of OIRA significantly strengthened, and we would hope
that when the nominee to replace Ms. Katzen comes forward that
the information aspect of that agency, or the administration, will
be seriously enforced, emphasized.

Mr. Horn. Well, we will soon be introducing our legislation to
separate management into an office of management and an office
of budget. Obviously this function, and several others I can think
of, would go in the office of management, so they can give it full
attention and not just be worn out by the budget considerations.
I don’t care who is President, what their ideology is, let’s face it,


146

are processed electronically, if the standards change or they need
to be reprocessed or certainly if they need to be reproduced, it 1s
very simply done as opposed to the very cumbersome process of
doing it on paper.

Mr. Horn. Just think, if the agencies don’t fix up their year 2000
problem and the private and public grid goes out in America, we
might clear out the backlog that way.

How many documents generally do you have on the internet? Do
you have all of them, are they all going on the internet in the case
of NASA?

Ms. Riep-Dick. I wouldn’t know if it is exactly that for centers.
I can tell you on headquarters, anything that we have had over two
we have put on there. NASA headquarters does not get the same
type of document requests that our centers do. The majority of our
centers get requests for contracts and procurement type documents,
where headquarters gets more of the administrative, so the centers
get more of the multiple requesters than we do.

Mr. Horn. Now, has this type of affirmative disclosure required
in the law reduced the number of FOIA requests? I mean, do we
have any feel for that now, or is it just too early to tell?

Mr. Hurr. It may be too early to tell on a widespread basis. We
have some anecdotal evidence, and in our Civil Rights Division, our
FOIA officer is firmly convinced that putting up the Americans
with Disabilities Act settlements online has significantly cut down
on requests for that category of records his office has, and he
speaks highly of it. Again, it is just a portion of his requests, but
that portion is now practically minimal. Once in a while he will
have to print one out because somebody doesn’t have the electronic
capability of getting it.

Mr. Horn. Let me move to index of major information systems.
In 1996, the amendments to FOIA required that each agency make
available an index of all major information systems of the agency,
a description of major information and record locator systems
maintained by the agency. Have each of you complied with that
index? If we went over to your office, what could we find out? Just
the types of information channels or communications that they
have, or are you categorizing as the National Archives might do,
in particular, for lines of inquiry? How does it work?

Mr. Hur. I believe that is the same sort of—similar to the same
question Congressman Sununu asked, and my answer is that we
still have a very long ways to go at the Department of Justice to
comply with essentially the Paperwork Reduction Act matters,
which will then be immediately used under subsection (g) of the
FOIA. As soon as we have that to satisfy the Paperwork Reduction
Act requirements, then we will plug those in and use those. The
answer is we have a long way to go at the Department of Justice.

Mr. Horn. In your guidance to the rest of the executive branch,
do we have chronological series, do we have topical series? What
are we doing in that area?

Mr. HuFF. That is an area where I believe the committee’s guid-
ance in its report gave that to OMB to give the advice, and they
have give—they have the obligation to give advice under subsection
(g), and OMB has given out two sets of guidance on that. So the


63

the high court was made aware of Congress’ clear expression to
the contrary in its finding.

But there is no question that the finding in the Electronic
FOI Act was called to the government's attention and a court’s
attention in two subsequent District Court cases.

Several agencies denied Nimby News (Tex.) editor Jack
McNamara information on former local sheriff Rick Dee Thompson

and his associate Robert Glynn Chambers. Thompson and chambers

had pled guilty to narcotics charges after federal law
enforcement officials seized a horse trailer belonging to
Thompson which contained 2,500 pounds of cocaine. They were
convicted in 1992.

Claiming that even acknowledging that records on the two
existed would intrude upon the privacy of the convicts, the
government refused to either confirm or deny whether it held
records on the two in its files. It claimed that McNamara’s
strong interest in informing the public about spiraling drug
activity along the Mexico and Texas border did not constitute a
public interest that could be balanced against these purported
privacy concerns.

McNamara sued for the records

While nis lawsuit was before the federal District court in
Pecos, the President signed the Electronic FOI Act. McNamara
then argued before the District Court that Congress’ finding

should alter the government's balance of public and private


20

to make agency records easter to find, and (11) to require agencies to use computers and
telecommunications technology to make more records instantly accessible to the public in
electronic form. Unfortunately, many agencies have been slow to implement these provisions and
the Clinton Administration, particularly the Office of Management and Budget ("OMB"), has not
provided the leadership necessary to fully implement these requirements of the law.

Agencies Have Not Implemented The 1996 Amendment’s Mandate That They Provide

For the last thirty years, one of the largest obstacles to public access to records under the
FOIA has been that agencies ofien lack adequate inventories of their records and, even if they
have good descriptions of their files, they rarely make any effort to publish this information for
the public. As one government task force on FOIA observed in 1995, "[t]he public has no
efficient and accurate way of learning what information the agency has," and no idea "how the
files are arranged, how long they are kept, or where they are stored."

The 1996 Amendments to the FOIA seek to remedy this problem by requiring agencies to
provide handbooks on how to request records from the agency. 5 U.S.C. § 552(g)(3)._ In
addition to the handbook, the agency must provide reference materials or a guide that contains (1)
an index of all major information systems of the agency; and (2) a description of major
information and record locator systems maintained by the agency. Id. § 552(g)(1), (2). Each
agency is also required to provide an index of the records that have been, or are likely to be,

requested more than once. Id. § 552(a)(2)(E). These handbooks, descriptions of agency record

" Department of the Interior, Report of the National Performance Review Freedom of
Information Act Reinvention Team, GATEWAY To GOVERNMENT INFORMATION at 11 (Sept.
1995).


37

Mr Horn Mr Jim Riccio is the staff attorney, Critical Mass En-
ergy Project of Public Citizen.

Mr. Riccio. Good morning, Mr. Chairman. Thank you for invit-
ing us to testify regarding the implementation of the Electronic
Freedom of Information Act Amendments of 1996.

Public Citizen is a nonprofit, nonpartisan organization founded
in 1971 by Ralph Nader to safeguard the public health and safety.
Public Citizen’s Critical Mass Energy project was founded in 1974.

Public Citizen’s Critical Mass Energy Project has been a strong
voice for a more rational energy policy, a phaseout of nuclear reac-
tors and a move toward cleaner, safer, more renewable sources of
energy. We have been a forceful critic of the Nuclear Regulatory
Commission and the nuclear industry both here on Capitol Hill and
throughout the country. Through our research, reports, and publi-
cations, we seek to inform the public so that they may better par-
ticipate in the government decisions that affect their future. Public
Citizen’s Critical Mass Energy Project works with hundreds of
grassroots activists around the country to better help regulate the
nuclear industry and the radioactive waste they produce.

The subcommittee has asked that we address the importance of
the Electronic Freedom of Information Act Amendments of 1996 or
EFOIA for research. One of the key provisions of the amendments
was to broaden the access of government information by placing it
online. My experience basically is with the Nuclear Regulatory
Commission, and it is my understanding that they are pretty much
ahead of the curve in this regard, but the provision has substan-
tially increased the amount of information and timeliness of infor-
mation and has made it much more readily available to members
of the public.

This is important because meaningful public participation can
only occur when there is timely access to information. In meeting
the mandate of the EFOIA, the U.S. Nuclear Regulatory Commis-
sion has improved both the timeliness and the accessibility of infor-
mation.

In the past, access to NRC’s information was limited to those
who would brave the wilds of the public document room, spending
hours digging through microfilms or paper files. For members of
the public, this type of research will be both time consuming and
expensive. While the NRC has a local public document room lo-
cated in the counties where NRC is licensed for reactors to split
atoms, any thorough research usually would entail a trip to the
District of Columbia in order to make use of the NRC’s public docu-
ment room.

Merely receiving a transcript of an NRC meeting would usually
take weeks and cost as much as $100 to reproduce. While this may
not seem like a lot of money to a K Street law firm, for a local,
nonprofit grassroots organization, it can impose a serious impedi-
ment to participation.

Now, most transcripts of commission meetings are available
within a few days and can be downloaded over the internet in a
few minutes. Concerned citizens now have the ability to access in-
formation concerning the status of the nuclear power plants on a
daily basis. They have NRC inspection reports, enforcement his-


57

Report on Responses and Non-Response
Of the Executive and Judicial Branches
To Congress’ Finding
‘That the FOI Act Serves ‘Any Purpose’

Prepared by The Reporters Committee for Freedom of the Press
By Request
Of the Chairman, Subcommittee on Government Management,
Information and Technology

Of the House Committee on Government Reform and Oversight

July 2, 1998


23

‘major information systems, and very few agencies have truly current and complete inventones of
their records holdings. Although Section 552(g)’s requirement that agencies provide the public
with an index of the agencies’ major information systems has been in effect for over a year now,
most agencies have not prepared the reference materials required by the statute, and many
agencies have released indices that only partially describe the agencies’ holdings.

‘The widespread failure of agencies to comply with Section 552(g) has deprived the public
of valuable information of government record holdings that are subject to the FOIA. The record
holdings of the Office of the United States Trade Representative provide a dramatic example.
USTR's “Public Handbook for Gaining Access. to. USTR Information”
(hutp://www.ustr.gov/efoia/handbook. html) instructs the public to consult USTR’s “Government
Information Locator Service” or “GIILS" records for an index of major information systems and
locator systems. The USTR's GILS entries, however, describe only six information systems. The
USTR has many other record systems - such as manual and computerized systems on Multilateral
‘Trade Negotiations, compilations of press releases and reports, and advisory committee files --
that are not described or identified in the six-item inventory that USTR makes available to the
public. Only a small fraction of the record systems and records locators reflected in USTR's
internal inventories are revealed in the guide that USTR has prepared for the public in response
to Section 552(g). A member of the public looking to the USTR’s reference materials for
information on the agency's records would be sorely disappointed or seriously misled because its
reference materials are woefully incomplete.

USTR is not alone in failing to provide the public with descriptions of all its major
information systems. ‘The problem is widespread. Because we consider compliance with this
affirmative disclosure obligation pivotal to meaningful public access, Public Citizen has brought

6


144

Mr. Lopez. Yes; and that is why we are moving hopefully—well,
part of it will be accomplished within the next 2 weeks with the
DOE web page design, and the other part, as I mentioned in the
testimony, will become operational later this month with respect to
information data bases and references, and we hope to complete
the other part by the end of the fiscal year.

Mr. Horn. OK. And this will be on the internet?

Mr. Lopez. Yes, sir.

Mr. Horn. OK. How about your guidance, Mr. Huff, to that re-
Port, that comes in in 1999? Is it saying you have to be on the inter-
net?

Mr. Hurr. I think the answer is yes, you have to be on the—I
am sorry, I want to be sure I understand the question.

The annual reports have to be——

Mr. Horn. No, no; just your guidance to the agencies on what we
are asking in that report, we need to know who is on the Internet.
Is it felt in carrying out the full spirit of the law that they all be
on the internet?

Mr. Hurr. We have strongly encouraged them all to be on the
internet. I believe that the statute may permit in rare cases an
agency to merely make information in some categories electroni-
cally available, which may be through a CD-ROM, but that is not
at all the emphasis that the Department of Justice has put on it,
and I think that as Energy has suggested, they are moving exactly
in the direction of a website and that is exactly what we have
urged and recommended to all agencies.

Mr. Horn. OK. I understand Mr. Sununu asked the last question
I was going to ask in this group, and that is, does your agency
make it possible for requesters to submit the FOIA requests online,
and I take it you can or you can’t?

Mr. Hurr. We cannot yet at most components of the Department
of Justice.

Mr. Horn. OK. How about the FBI?

Mr. COLLINGWOOD. No; we cannot. We are moving in that direc-
tion, but we cannot.

Mr. Horn. How about NASA?

Ms. Rtep-DIce. Yes, sir; we can.

Mr. Horn. How about Energy?

Mr. Lopez. Again, we hope in the next 2 weeks.

Mr. Horn. Two weeks, that is terrific. We are making a little
progress here.

Now, repeatedly requested documents have been brought up by
some earlier, but just to make sure I have everything covered, the
1996 amendments to FOIA require that documents likely to be the
subject of more than one FOIA request be placed in an agency's
electronic reading room. Now, we heard the two-per figure in terms
of NASA, I believe, that if there are two requests, you would then
put it in your electronic reading room; maybe I am missing the
agency or something?

Ms. Riep-DIcE. No; that is correct, sir.

Mr. Horn. That is right; two requests. So does that seem like a
reasonable rule to the other three of you, or do you feel there
should be a greater volume before you put it on?


90

RECOGNIZE THAT WE HAVE A LONG WAY TO GO TO BE

WHERE WE NEED TO BE.

PLEASE ALLOW ME TO DESCRIBE A FEW OF THE
HIGHLIGHTS SINCE THE FBI WAS LAST HERE.
* WE HAVE ESTABLISHED MONTHLY AND
YEARLY GOALS DESIGNED TO ELIMINATE
THE BACKLOG BY 2001, AND WE ARE

MEETING THESE GOALS.

* THE BACKLOG OF PENDING REQUESTS PEAKED AT
16,426. IT NOW STANDS AT 11,889, A 28 PERCENT
REDUCTION. THIS IS IN ADDITION TO HANDLING
THE APPROXIMATELY 13,000 NEW REQUESTS WE
RECEIVE EVERY YEAR. THERE HAS BEEN AN
EVEN GREATER REDUCTION IN THE NUMBER OF

TOTAL PAGES IN THE BACKLOG WAITING TO BE

4


44

I think that this is a classic example of the courts not being in-
clined to take direction from Congress, and it 1s something that I
hope Congress will address in whatever way it deems appropriate.

fe are very grateful for the opportunity to discuss these issues
with you, and I will be happy to answer any questions that you
might have.

[The prepared statement of Ms. Kirtley follows:]


85

Mr Horn. Mr Collingwood.

Mr. COLLINGWOOD. r. Chairman, thank you for the opportunity
to testify.

Two of your earlier witnesses on the panel that came before us
identified backlogs as one of the two significant problems facing
FOIA and the implementation of EFOIA. It is our view, as we testi-
fied to 2 years ago in front of your committee, and it remains our
view that the FBI’s level of backlogs in our FOIA process remains
intolerably high.

At the risk of agreeing with Ms. Kirtley, the journalist on the
previous panel, delay in the FOIA process is, in fact, a tremen-
dously significant problem for the Bureau. But I am pleased to re-
port today that we are making some substantial progress.

It remains our view that responsiveness under FOIA is a critical
and important factor in the de of confidence and in maintain-
ing public confidence in the FBI and our ability to investigate
under the rule of law. The vast majority of our requesters, nearly
75 percent, are the people that you have identified as average citi-
zens who are seeking information from the FBI, and we want them
to be sure that we are investigating violations of the law in the
manner that is intended under the rule of law, and we think and
we believe that FOIA is a critical to that confidence, and respond-
ing on a timely basis is a critical part of that process.

I can assure you that the Attorney General and the Director per-
sonally are committed to eliminating the backlog that the FBI has.
They both are personally involved in that process, and they both
are committed to providing increased public access to FBI records.

Since we were here last time, over the last 18 months, we have
taken a number of actions that have streamlined both the oper-
ation of our FOIA process and enhanced the efficiency with which
we process FOIA requests; and we have managed to eliminate 28
percent of our backlog as well as handle the 13,000 new requests
that we get every year for information. We probably have made
even greater progress when we count pages and the pages that are
in our backlog.

For the very first time since the enactment of the original FOIA,
I am pleased to announce to you and I am pleased to tell you that
we are absolutely not only committed to eliminating our backlog,
but confident that we will, in fact, be able to eliminate our backlog.

In regard to EFOIA, EFOIA, we believe, will greatly assist us in
that endeavor. It not only will have all of the benefits that the pre-
vious panel described, but it will help us as an agency process our
records in a more efficient manner; and it ultimately, we believe,
will reduce the workload by making records more accessible online
and making records more available in electronic format.

Anybody that has any doubts about the importance of full imple-
mentation of EFOIA and the necessity for revising the way in
which we do business under FOIA to convert to the electronic for-
mat need only watch their school kids do research for school
projects and know that they spend considerably more time on com-
puters than they do in libraries. And there is a balancing here that
clearly there is a different mindset in America today, and it is one
that we need to be prepared with and the FBI needs to be prepared
to deal with in that regard.


62

had not signed the bill at the time of that decision, the court
continued to rely on the Reporters Committee standard in
evaluating the public interest in disclosure of FBI records.
Voinche v. Federal Bureau of Investigation, 940 F. Supp. 323
(D.D.c. 1996).

The President signed the Electronic FOI Act in October 1996
while the U.S. Supreme Court had before it a petition for
certiorari in a case from the Ninth Circuit involving the Bureau
of Land Management's denial of a mailing list for a newsletter
issued by BLM’s Oregon State Office based on the privacy
exemption. In May 1996, the appeals court affirmed a lower court
ruling that an environmental group could have the mailing list in
order to send out its own mailings that in some cases would
challenge the information in the government's newsletter. The
lower courts had agreed with the environmental group that the
public has an interest in knowing to whom the government is
@irecting information or “propaganda” and that this interest
outweighs any privacy interest that would justify withholding.

But the high court never heard arguments in Bibles v. Oregon
Natural Desert Assn., 119 U.S. 335 (1997). Instead, in February
1997, four months after passage of the Electronic FOI Act, but
several weeks before its effective date, the Supreme Court issued
a one-page summary opinion overturning the Ninth Circuit
decision, saying the appellate decision was “inconsistent” with

its 1989 pronouncement in Reporters Committee. We do not know if


86

We have two projects under way that I think are very, very sig-
nificant in that regard. One is the project to develop within the FBI
end-to-end electronic processing of records to make them available
in electronic format, and all of our reading room material available
in electronic format with most of it available online, as public ac-
cess would indicate is necessary.

We have two very simple goals, Mr. Chairman. One is to elimi-
nate the backlog as quickly as we can and the other is to produce
our records in whatever format best meets the needs of our thou-
sands of requesters. We have a long way to go. We recognize that
we have a long way to go, but we are committed to achieving those
ends. We are seeing progress toward achieving those ends, and we
believe in the end, EFOIA will greatly assist us in that regard.

Finally, I would like to add my thanks to you, your committee,
our appropriations committees, and Congress as a whole for pro-
viding us not only the tools, but the resources we need to accom-
plish that.

Mr. Horn. Well, we appreciate that. We are going to get into the
question of sufficient resources for all of you, and it sounds like you
will have a good report to make on that.

[The prepared statement of Mr. Collingwood follows:]


121

Mr. SUNUNU. Is the reference guide available electronically?

Mr. Hurr. Yes, sir.

Mr. SUNUNU. And, again, speaking about information systems
that are due to be indexed and described, are we talking about a
dozen information systems or 100 information systems?

Mr. Hurr. I very much suspect it is larger than 100, considerably
larger. And the answer is I don’t know. But that’s what I suspect.

ir. SUNUNU. Could I ask you to find out, just for the record, for
this hearing?

Mr. HurF. We can get you—if we were given a little bit more
time, we will supplement the record on that, and I think that as
our Justice Management Division works on that, we will be able to
give you a far more accurate answer. And the answer to your ques-

Hon is
1. SUNUNU. Mr. Lopez, have you put together the index and the
destrigtin?

Mr. Lopez. No, that has not been completed. We hope to have
part of that operation within this month. And we will be having
some of it actually within the next 2 weeks as we complete the re-
vision of the DOE Web page.

Mr. Sununu. Do you have an approximate number of informa-
tion systems or know of the approximate number of information
systems that are going to be indexed?

Mr. Lopez. No, and I wouldn’t want to mislead you, but I will
provide that for the record.

Mr. SUNUNU. Ms. Riep-Dice.

Mr. Horn. Without objection, at this point, it will be included.

Ms. Rigp-Dicr. We have the NASA GILS online, which is similar
to the government locator system. We have NDOIS, which is the
NASA directives online. We have listed all the documents in our
reading room alphabetically. Although they cannot be searched,
they are listed alphabetically where someone can click on that par-
ticular document and get it. As far as the number of information
systems, I have no idea. But I can supply that.

(The information referred to follows:]

NASA has 61 information systems.

Mr. SUNUNU. Last question from me for each of the panelists
here: Can FOIA requests be made to your respective agencies on-
line, electronically? Mr. Lopez.

ir. LOPEZ. Not at the moment, but that is part of the redesign
of the Web page which we hope to be up in 2 weeks, that will in-
clude an electronic format.

Mr. Sununu. At NASA?

Ms. Rigp-DICE. Yes, sir, they can.

Mr. SUNUNU. And at Justice?

Mr. Lopez. Not at this time.

Mr. SUNUNU. And at this time?

Mr. COLLINGWOOD. Not at this time.

Mr. SuNUNU. And Justice and FBI, do you have plans for imple-
menting online requests?

[UFF. We don’t have plans, but I think that is something
we're working toward. I don’t want to say we have an outline for
doing that, but I know that is something we're working toward.


124

set up the appeals function in the Department of Justice, I believe
in the neighborhood of 1975 or 1976 when the predecessor of our
office was first created. Our office that carries out that function
and under the statute, it is the head of the agency that acts on all
administrative appeals. Most agency heads delegate that to the
general counsel's office. In the Department of Justice it is delegated
to the Office of Information and Privacy.

Mr. Horn. Well, on a request, now, do you work in overhead for
other offices like management, Justice Management? Do they have
an overhead on your bill to Mr. Collingwood?

Mr. Hurr. No.

Mr. Horn. Or to any citizen?

Mr. HurF. No, it is just the cost that we have for our employees
and for our rent and for the cost of our paper. That is—those are
the portions of the costs that Mr. Collingwood’s office makes.

Mr. Horn. So there aren’t any FTEs outside of your area that
are covered by that particular payment?

Mr. Hurr. No. All of the FTEs are on the fifth floor and seventh
floor of our office building, and they work for us.

Mr. Horn. How much was your budget, let’s say, 3 years ago?
It’s $3.6 million now. What was it 3 years ago? Roughly a million?

Mr. HurF. No, no, sir. I think probably in the neighborhood of
$3 million. It’s $3.6 million now.

Mr. Horn. It’s been fairly consistent over the last few years now?

Mr. Horr. It’s been a fairly similar increase. I should note that
just during this past year we have increased the number of FTEs,
we made a request for that. In addition to receiving the backlog co-
ordinator, we asked for five additional personnel, and we were
given that, and we are in the process of hiring. We've already hired
some of them. We had another one just accept a position earlier
this week, and we still have more to fill.

Mr. Horn. So your office has how many full-time equivalent peo-
ple now?

Mr. Hurr. We are—I think right now we have 42, with 1 more
that has accepted a position, and we have the capability of 46 full-
time equivalents. We have several part-time people, so the number
of people is slightly higher than that. But the FTEs, I do believe
we are now entitled to 46.

Mr. Horn. Yes. So you’re in pretty good shape, then, in terms of
resources?

Mr. HurrF. I believe so.

Mr. Horn. OK. How about the FBI? How many FTEs do you
have now, today, to solve this problem?

Mr. COLLINGWOOD. Oh, I don’t have the precise figure with me.
In fiscal year 1997, Congress gave us an additional 129 positions.
In fiscal year 1998, they gave us an additional 234 positions.

Mr. Horn. An additional 234?

Mr. COLLINGWOOD. Yes, sir.

Mr. Horn. Really? And give me that base year again. In fiscal
year 1997, what was it?

Mr. COLLINGWOOD. We were at 255 and, we have received in-
creases from that of 129 in fiscal year 1997 and 239 new positions
in fiscal year 1998. I believe combined that will give us an FTE
total of 669. To show you how optimistic we are, we had a request


31

‘The National Archives and Records Administration, however, has not pressed agencies to
manage their electronic records in their original format but, instead, has allowed agencies to
routinely convert electronic records to paper -- a policy that undermines public access and
‘opportunities for more efficient and widespread dissemination of government information, Public
Citizen has successfully challenged this policy in a case that is currently on appeal, Public Citizen
Catlin, C.A. No. 96-2840 PLF. At present, however, neither the National Archives nor OMB
have provided meaningful leadership on this issue, and the vast majority of federal agencies do
not have policies in place for managing and archiving electronic records that are subject to the
FOIA.

Conclusion

The 1996 Amendments direct agencies to replace an archaic system of providing public
access to agency records with a new system in which agencies actively make information
accessible and available to the public in a way that befits the computer age. Although Congress
can enact statutes mandating a new era in government disclosure, it is up to agencies to make
those mandates a reality. Many of the most important provisions of the 1996 Amendments,
however, are not being fully implemented. ‘The future of this legislation will depend on real
leadership from OMB, funding to promote the efficient management and dissemination of
electronic records, and enlightened policies on electronic records from the National Archives.
Most importantly, unless more agencies make implementing the 1996 Amendments a priority,
FOIA's mandate that taxpayers shall have prompt, efficient access to information on what the

government is doing with their money will remain an unfulfilled promise.


7

First, Congress did not provide the necessary funding to carry
out the implementation of the amendments; second, OMB did not
provide adequate guidance or assistance to the agencies during the
implementation process; and, third, agencies have yet to make pub-
lic access to government information a priority.

We also have a set of policy recommendations that we would like
to put forward.

The first of these is that the goal of EFOIA should be to make
information so publicly accessible online that the Freedom of Infor-
mation Act requests become an avenue of last resort; and, in this
same vein, the goal should be to provide access to the records di-
rectly online to as great of an extent as feasible.

Second, although OMB has recently provided guidance to the
agencies that does fulfill the letter of the EFOIA amendments, to
make this guidance effective, OMB must also develop a plan for
how EFOIA fits into the overall framework of Federal information
policy and, in particular, public access.

Third, Congress must allocate appropriate levels of funding for
ongoing implementation of the EFOIA amendments. It is difficult
for agencies to make EFOIA a priority when moneys must be di-
verted from other important projects such as the Y2K concerns that
most agencies are facing now.

Fourth, Congress must search for new ways to ensure implemen-
tation of these amendments through an enforcement mechanism.
Currently, agencies that are not in compliance are not penalized.

Fifth, agencies that have decentralized responsibility for EFOIA
implementation must provide a procedure for its consistent imple-
mentation across the agency. If parent agencies continue to take a
hands-off approach to EFOIA obligations, the public will continue
to receive uneven access to information across the agency.

Sixth, agencies must make their EFOIA information handbooks,
indexes, repeatedly requested records easily identifiable and clearly
described on line.

Seventh, agencies must immediately propose in the Federal Reg-
ister and subsequently adopt implementing regulations which
should establish the agency’s definitions regarding what constitutes
a repeatedly requested record which was not defined in the act,
and has not been clearly defined by the agencies.

Eighth, all agencies should follow the lead of those that provide
forums for submitting FOIA requests online, including GSA, the
Small Business Administration, and several others.

And finally, all agencies should provide access to their informa-
tion in text only as well as graphics versions for users without ac-
cess to high-technology equipment, and a good example of this is
the Veterans’ Administration.

That concludes my summary remarks. Thank ru very much.

Mr. Horn. We thank you. That was a very helpful statement and
well organized.

[The prepared statement of Ms. McDermott follows:]


139

‘Summer 1997

FOIA UPDATE 5

1S Median number -- the middie, not average,
number For example, of 3, 7, and 14, the
median number 1s 7.

16. Average number -- the number obtained by
dividing the sum of a group of numbers by the

‘quantity of numbers in the group. For exam-
ple, of 3, 7, and 14, the average number is 8,

IV. Exemption 3 Statutes

A. List of Exemption 3 statutes relied on by agency
during current fiscal year.

1. Brief description of type(s) of information
withheld under each stanute,

Statement of whether a court has upheld the
use of each statute. If 50, then cite example.

\V. Initia! FOLA/PA Access Requests
‘© This should include all acess requests, whether
first-party or third-party.
"= Both large and small agencies should provide infor-
‘mation in the format presented below.
© Agencies may additionally use chart format for
breakdown by multiple agency components.
‘A. Numbers of initial requests.
© Total of the numbers in Lines 1 and 2, minus the
number in Line 3, should equal the number in
Line 4,
1. Number of requests pending as of end of
preceding fiscal year

2. Number of requests received during current
fiscal year

3. Number of requests processed during current
fiscal year

4. Number of requests pending as of end of
‘current fiscal year
(Enter this number also in Line VIL-B.1.)

B. Disposition of initial requests.

1. Number of total grams

2. Number of partial grants

3. Number of denials

‘8, number of times each FOIA exemption used
(counting each exemption once per request)

(1) Exemption t

vi

@) Exemption 2
@) Exemption 3
(4) Exemption 4
(5) Exemption 5
(6) Exemption 6
(1) Exemption (A)
(8) Exemption 78)
() Exemption 1(C)
(0) Exemption 71D)
(11) Exemption 2(6)
(12) Exemption 7(F)
(13) Exemption 8
(14) Exemption 9
4. Other reasons for nondisclosure (total)
a. no records
b. referrals
¢. request withdrawn
4. fee-telated reason
. records not reasonably described

{. not a proper FOIA request for sore other
reason

‘pot an agency record

duplicate request

other (specify)

‘Appeals of Initial Denials of FOIA/PA Requests

= This should include all access requests, whether
firs-party or third-party

‘Bot age and small agencies sould provide
information in the format

© Agencies may additionally use chart format or
‘eakdown by mliple agency component

‘A. Numbers of appeals.

1. Number of appeals received during fiscal year


147

answer is, that 1s one area where we don’t have that responsibility
of guidance. We do of comphance.

Mr. Horn. So you feel generally you have complied with those
requirements on the index?

ir. HuFF. No; I think that that overstates it. I don’t think that
we have—we still have a lot of work to go with regard to the re-
quirements, meeting the obligations under the Paperwork Reduc-
tion Act. And that is something that we are working on, and it is
something that the Justice Management Division is working on
now, and they are trying to do that.

Mr. Horn. Are they trying to do it then Departmentwide?

Mr. Hurr. In very large part it will be Departmentwide. Yes; it
will, and that is something that we owe a communication to your
committee on as soon as we can get a projection. Congressman
Sununu asked about that, and as soon as we can get a good projec-
tion on when we can do that and the volume that we might have,
that is something that we will get to your committee.

Mr. Horn. So without objection, either at the place Congressman
Sununu raised this, or at this particular place, we will put it in at
one or both.

[The information referred to follows:]


46

Mr. Chairman and members of the subcommittee: My name is
Jane Kirtley, and I am Executive Director of the Reporters
Committee for Freedom of the Press, a voluntary association of
news reporters and editors dedicated to helping journalists
exercise their First Amendment and freedom of information rights
to gather and cover the news.

The Reporters Committee and I thank you for the invitation
to discuss the Electronic Freedom of Information Act of 1996. We
know that we find in this subcommittee a strong ally in the quest
for better access to government information. We have not
forgotten how this subcommittee pushed long-anticipated
electronic FOI legislation to enactment in late 1996. We are very
pleased that, having brought the measure to life, the
subcommittee maintains an interest in its continuing good health.

I would like to talk about this statute in terms of what it
promises, not what it has delivered. This is important because
so far, and for the most part, federal agencies have missed their
deadlines for compliance with the Act in the same way they have
been missing FOI deadlines for decades.

Many problems addressed by EFOIA are not yet cured by it

To begin at the most fundamental level, most agencies still
do not have implementing regulations for the EFOIA. Proposed
rules by the Department of Justice, which assumes the lead in FOI
matters, became final only in iate May after many months in the

1


6

statutory mandates for meaningful public access to the information
created, collected, and/or maintained by or for those agencies.

I want to recognize the work of Jennifer J. Henderson in re-
searching and doing the majority of writing for this study and re-
port. Over a 3-month period between November 1, 1997, and Janu-
ary 31, 1998, OMB Watch examined 135 unique Federal Govern-
ment EFOIA websites for 57 agencies. Some EFOIA websites rep-
resented entire agencies, while others reflected an agency division
or department. In each case, we searched for the existence and
completeness of four major categories of information required
under the 1996 EFOIA Amendments.

Additionally, a letter requesting information recording the cur-
rent status of and future plans for meeting the amendments was
sent to the FOIA officers of 84 agencies and commissions listed on
the DOJ’s Office of Information and Privacy FOIA home page. Al-
most two-thirds of the agencies contacted considered our letter for
information a formal FOIA request and processed it as such. Of
these, about one-half sent a standard form letter acknowledging
our request but sent no additional information. The other half ei-
ther replied directly or sent the form letter and then followed up
with other information.

In all of our research, we approached the web sites from the per-
spective of an average member of the public searching for informa-
tion. Our intent was to separate those agencies that took the time
to provide meaningful public access to their information from those
that simply implemented the amendments to fulfill their obligation
as quickly as possible.

Overall, this study found that agencies are moving at a great
speed to provide information online. Unfortunately, this informa-
tion is often unorganized, unrelated, and difficult to find. In a ma-
jority of agencies, EFOIA information is very difficult to find on-
line, and often what appeared to be an index to the agency’s major
information systems was actually an index of the website.

The amendments did not require that the information be easily
found, so that is not a quantified item in this report, but it is an
observation.

Of the 57 agencies examined, 13, or 23 percent had, as of Janu-
ary 31, no EFOIA presence; 44, or 73 percent, had varying degrees
of compliance with the requirements; and as of January 31, 1998,
no agencies had fully complied with the amendments.

In agencies that have decentralized the responsibility for EFOIA
to different units within the agency, there is often uneven dissemi-
nation of information due to a hands-off approach by the parent
agency or parent organization.

Our fourth finding is that the Office of Management and Budget
[OMB], which was assigned the responsibility of providing guidance
on the implementation of EFOIA, did little to aid agencies in ful-
filling their requirements.

The guidance that OMB did provide last year has led some agen-
cies to be out of compliance with the law, and I can explain that
later in the dialog.

Our study indicates that, overall, agency compliance with the
EFOIA Amendments has been overwhelmingly inadequate. We con-
sider that there are three overriding reasons for this.


40

In the past, access to NRC information was limited to those who would brave the
wilds of the public document room spending hours digging through microfiche and paper
files. For members of the public this type of research would be both time consuming and
expensive. While the NRC has local public document rooms located in the county where
NRC has licensed a nuclear reactor to split atoms, any through research usually would
entail a trip to Washington in order to make use of the NRC’s main public document
room. Merely receiving a transcript of a Nuclear Regulatory Commission meeting would
usually take weeks and could cost as much as a hundred dollars to reproduce. While this
may not be a lot of money to a “K” street law firm, for a local, non-profit, grassroots
organization it could impose a serious impediment to participation.

Now, most transcripts of Commission meetings are available within a few days
and can be downloaded over the Internet in a few minutes. Concerned citizens now have
the ability to access information concerning the status of the nuclear power plant
operating in their backyards on a daily basis. They have access to NRC inspection
reports, enforcement histories of every reactor, licensee event reports, and the regulations
that govern the splitting of atoms.

Through the on-line use of the Federal Register, Citizens can more easily
participate in the administrative process that governs nuclear reactors. They have more
timely access to proposed rules governing the nuclear industry as well as proposed
license amendments affecting the nuclear reactors in their backyard. Since many
comment periods on proposed rules and license amendments are only for 30 days,
instantaneous access to the proposed rule or amendment is imperative if the public is to
have the time to digest the information and formulate thoughtful well researched
comments.

Although the NRC still has a long way to go to improve the quality of public
participation in the regulation of nuclear power plants, the improvements in the
ity of information have made the limited opportunity to participate more
meaningful.

While the Electronic Freedom of Information Amendments of 1996 has
undoubtedly increased the availability of information, placing more informati n-line is
nota panacea. In the move from paper to computer, the government must be vigilant that
information is not lost in the transition. We at the Critical Mass Energy Project are aware
of one case where this has already occurred.

Several years ago, we became aware of errors in the data base used to track the
number and severity of violations of NRC regulation. According to NRC, as much as one
third of the data was missing and half of the data concerning severity of the violation was
incorrect. When repairing this data base, if the NRC could not match a paper copy of the
violation to the computer record, the computer record would be deleted.

This undoubtedly resulted in a loss of information.


120

whether or not you’ve made that index and a description of the in-
formation systems available yet. Mr. Huff.

Mr. Hurr. On behalf of the Department, we have only partially
complied with that. We have substantial work that we need to do,
very substantial work to do.

Mr. SUNUNU. Given that it’s just an index and the description of
the system, what’s the problem with making it available?

Mr. Hurr. That requirement comes from the Paperwork Reduc-
tion Act, and the requirements that the Paperwork Reduction Act
places on agencies and the language that EFOIA subsection (g)
picked up on said agencies are required to put out major indexes
and inventories of major information systems along with a guide.
Most certainly we have done a reference guide, and I think we’ve
got a very fine product on that.

But in terms of the other—the major information systems that
are required under the Paperwork Reduction Act, that’s something
that the Department of Justice is—needs to put a lot more time in
on, and is beginning to do that and to make that effort. Once we
are able to satisfy the obligation of that statute, that will be trans-
ferred, and we will immediately or within a very short period of
time make it available electronically. That’s an area where we need
to do a lot more.

Mr. SunuNU. How many information systems does the Justice
Department have?

Mr. Hurr. I don’t know. I’m not sure that anyone knows at this
time. That is part of the problem.

Mr. SUNUNU. With all due respect, I mean this very sincerely,
isn’t it your job to know?

Mr. Hurr. It is——

Mr. SuNUNU. The Office of Information and Privacy, it would
seem to me that if I had a list of however many thousand people
that work at Justice and I wanted to find the one person who could
tell me how many information systems Justice had under their
auspices, you would be the man.

r. HurF. I would advise you that the Justice Management Divi-
sion is the component of the Department of Justice that works with
information systems, and that is the component of the Department
of Justice that does have the responsibility in this area. And that’s
the component that is right now moving toward that right away.
What we—if I may.

Mr. SUNUNU. Sure.

Mr. Hurr. What we did with regard to the initial guidance that
we received with respect to what subsection (g) did require us to
do in connection with a reference guide, is that we were required
to put on the GILS presence, and that was something that the De-
partment did have. We did have a bit, and I don’t mean to over-
state that at all, a small bit of records, major records systems that
we did have. And those were what we received from the Justice
Management Division, and we put those in our reference guide in
connection with subsection (g).

Subsequently, OMB has revised its guidance on that, but I don’t
mean to suggest that exclusively because the guidance was
changed, that was our problem. Our problem was an underlying
problem with the compliance with the Paperwork Reduction Act.


19

Cinzen v Carlin The Litigation Group also provides legal support for the Freedom of
Information Clearinghouse, which provides technical and legal assistance to individuals, public
interest groups, scholars and journalists who seek access to information held by government
agencies.

Although the FOIA has long mandated that the public should have access to agencies’
records, with the exception of those records that may be withheld from the public because they
contain privileged, classified, or sensitive information, the FOTA’s mandate has never been fully
realized. FOIA has been crippled by two significant failures in federal information policy: the
lack of useful, comprehensive directories of government records, and the chronic delays in making
records available to the public. It is difficult for members of the public to sort through the
complex organization of the federal bureaucracy and determine what records the govemment
holds, which agencies hold them, and how to obtain access to them. Moreover, FOIA’s directive
that agencies “promptly” release records after a member of the public submits a written request
has been mocked by lengthy delays in getting agencies to respond to even simple requests. There
is a vast body of government records that the FOIA gives the public the right to examine because
they are not subject to any restriction on disclosure, but the records are effectively unavailable to
the public because itis difficult to find them, and agencies’ procedures for releasing them impose
prolonged and often unwarranted delays.

The most important provisions of the 1996 Amendments are those that seek to address
these problems by increasing agencies’ obligations to make “affirmative disclosures,” that is, the
provisions of the Amendments that require agencies to disclose information of obvious public
interest and make it instantly accessible rather than passively waiting for the public to submit a
written request for the records. ‘These affirmative disclosure provisions have two objectives: (i)

2


4

Agencies must make categones of EFOIA compliance — handbooks, indexes, repeatedly
requested records — easily identifiable online. While the findings of this study are cnibcal of
EFOIA compliance overall, information to fulfill EFOIA requirements may very well be available
‘online, but could not be located because it was not clearly identified.

Agencies must immediately propose in the Federal Register and subsequently adopt
‘implementing regulations which should establish the agency's definitions regarding what
constitutes a repeatedly requested record. These definitions must be made publicly available
both through the Federal Register and online so requesters will know whether to expect
information to be posted online.

Alll agencies should follow the lead of those that provide forms for submitting FOIA requests
oline. While some agencies argue that this option wall overwhelm their ability 10 fill the requests,
if this is implemented in conjunction with the EFOIA provision for posting repeatedly requested
documents, requests may actually decrease or level out.

Agencies must clarify what information their online indexes describe — the web site or
EFOIA information. Until this is done, users will believe they are being provided access to all
information described in EFOIA, when in reality, they may be provided only a small percentage of
this information.

All agencies should provide access to their information in text-only as well as graphics
versions for users without access to high-tech equipment. Although flashy web sites often get
the most attention, they are not always the most user-friendly

OMB Watch -7-


i
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(n HUNORED FFT: CONGRESS.

Congress af the United States

House of Representatives
‘COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
2157 Ravaunw Hovse Orrice BuLona
Wastanaron, OC 20516-6149

uf
up

aay!
Bah
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“Implementation of the Electronic Freedom of Information Act Amendments
of 1996: Is Access to Government Information Improving?”

June 9, 1998

OPENING STATEMENT.
REPRESENTATIVE STEPHEN HORN (R-CA)
Chairman

‘Subcommittee on Government Management,
Information, and Technology

‘This hearing is about access to Government information. James Madison articulated the
importance of this issue in a statement that deserves all the attention it will receive here today:

‘A popular Government without popular information or the means of acquiring
it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will
forever govern ignorance, and a people who mean to be the govemors, must
arm themselves with the power knowledge gives.

(Our purpose is to give content to the timeless wisdom of these words as we stand at the
threshold of a new era. The framework for our efforts is the Freedom of Information Act of
1966 - commonly called FOIA. Two years ago, Congress amended the Freedom of Information
‘Act to make it more effective for the digital age. At this hearing, we intend to ask whether the
Executive Branch today is living up to Mr. Madison’s eloquent vision.

Specifically, we are here to examine implementation of the Electronic Freedom of
Information Act Amendments of 1996. The purpose of the 1996 amendments, and the Freedom
of Information Act more generally, is to promote open, accessible govemmment. Democracy
depends on access to government information. Participation in govemment by private citizens
and accountability of governmental officials are two pillars of representative government. These
functions of participation and oversight by the public are just as important as the checks and
balances written into our Constitution.

The Electronic Freedom of Information Act Amendments of 1996 made two major
changes to the Freedom of Information Act. One, the amendments provided for an increase in


132

Mr. Horn. Four hundred and nineteen, OK. And how long do you
think it will take for any recently received communication request?
What are we talking about for one that is filed today? What hope
do they have that they won’t be on Medicare, for example? Or they
can read it while they are on Medicare? So what are we talking
about there in Energy? If I would walk in today, how long can I
sit around and wait, go wait in the waiting room?

Mr. Lopez. If it is not classified information?

Mr. Horn. Yeah, right.

Mr. Lopez. We are looking at, at the moment, at 495 days.

Mr. Horn. How many now?

Mr. Lopez. Four hundred and ninety-five.

Mr. Horn. Four hundred and ninety-five days. OK. How many
for NASA?

Ms. Riep-DicE. The average response time is 24 days.

Mr. Horn. Twenty-four days for NASA. How about for the FBI
now?

Mr. CoLLINGWoop. Again, Congressman, it is going to depend on
what the volume of responsive records are because of the queue
system that we have, so it could vary anywhere from a little over
a year for a small request up to 4 or 5 years if it is a major request
of thousands and thousands of documents.

Mr. Horn. Give me an idea or name a case where it would take
4 to 5 years. What kind of thing are we talking about?

Mr. COLLINGWOOD. We have currently pending, for example, ap-
proximately 140 what we call project cases that are requests for
major investigations that have spanned multiple years and have,
in response to that, request, tens of thousands of pages; organized
crime or some of the older investigations of the 1950’s and 1960's
where they went on for years and years.

Mr. Horn. Is that an author doing a book, or is it a class action
suit, or what?

Mr. COLLINGWOOD. Most of those are researchers or authors
doing books. Now, I would take this opportunity to give a big plug
to one aspect of EFOIA and that is the negotiation aspect. In re-
sponse to that, we have established a negotiation team that works
specifically with those kinds of requesters, because what most re-
questers find, despite the huge or the voluminous amount of
records that are substantially responsive to their requests, what
they really want are some specific items out of those. We have very
successfully responded to a number, over 300 different requesters,
in identifying and rapidly processing a very limited amount of in-
formation that gave them precisely what they were looking for.

Mr. Horn. Very good. How about your office and the leadership
offices at Justice? What are we talking about?

Mr. HurF. It varies a tremendous amount, depending on the type
of the request. We have many requests that we are going to be able
to respond with very little difficulty at all within the 20 working

days.

on the other hand, we have, I believe we have received 1 request
in the last few months that has had in excess of 100 subparts to
it, which asks for information on specific topics in specific individ-
uals’ offices who are senior people in the department, and we have
got to conduct searches and have those people conduct searches of


110

These changes reflect major progress, but there 1s more to be done

Next Steps

‘Apart from our progress in implementing the Electronic Freedom of Information Act
Amendments and our plans to fulfill requirements that have not yet come due, more work

remains to be done to achieve our broader objective of responsible openness.

We intend to promulgate regulations that provide for multi track processing of requests based on
the amount of work or time involved to process cases, as well as regulations that provide for
expedited processing for the requests demonstrating compelling need (threat to life or physical
safety and urgency concerning actual or alleged government activity). These are important

activities and we plan to have final regulations promulgated by the end of 1998,

‘Additionally, the Freedom of Information Office, working with the Department's Office of
Information Management, is working to develop a corporate-wide information system that

will fully automate the FOTA process and network our headquarters and field sites.

We still must solve the technical and system problems to provide the capacity to post
headquarters and field reading room records on the Internet. Our Strategic Information
‘Management Process, a front-end corporate analysis of DOE-wide information technology needs
will be completed by the end of the year and will identify our alternatives and recommended
courses of action for Electronic FOIA. Any major corporate investment necessary to implement

this system will be tracked through our Information Technology Investment Portfolio System.

5


69

Violence v_U ‘t of the Treasury, 981 F. Supp. 20
(D.D.C, 1997).

In a case involving a request for communications regarding
the case of alleged former Nazi guard John Demjanjuk, a federal
district court in New York relied on the
standard: "The Supreme Court has repeatedly held that the public
interest in disclosure in all FOIA cases is derived from the
purpose of the Act - promoting public scrutiny of agency action
[] Disclosure furthers this statutory purpose only when the
official information ‘sheds light on an agency's performance of
its statutory duties.’ [} If the information sought through FOIA
does not "shed light" on agency conduct, but rather focuses on
isolated low-level, alleged government wrongdoers, it does not
Serve a substantial public interest." Ligorner v. Reno, 1998 WL
142334 (S.D.N.¥. 1998).

A federal district court in North Carolina relied on
Reporters Committee when assessing the public interest in the
disclosure of "the names of lower-level IRS employees.” “The only
relevant public interest in the FOIA balancing analysis is the
extent to which disclosure of the information sought would shed
light on an agency's performance of its statutory duties or
otherwise let citizens know what their government is up to," the
court said. Cujas_v. Interna v. , 1998 U.S. Dist
LEXIS 6466 (M.D.N.C. 1998).

Denying a criminal defendant's FOI Act request, a federal
district court in Texas acknowledged that although the requester
“arguably has a private interest in the records which reveal the
identities of the confidential informants who helped build the
criminal case against him, this court sees little or no “public
interest' in these particular records." The court based this
holding on the limited characterization of the public interest
found in Reporters Committee. McQueen v. United States, 1998 WL

312720 (S.D. Tex. 1998).


24

‘suit against seven agencies for failing to prepare inventones and descriptions of mayor information
systems as required by the Paperwork Reduction Act and the Freedom of Information Act. The
agencies named as defendants in this suit are the USTR, the Office of Management and Budget,
the Office of Administration, the Department of Education, the Department of Energy, the
Department of Justice, and the Department of State.

‘The failure of agencies to implement this provision of the 1996 Amendments is
attributable, in large part, to the lack of leadership on this issue by the OMB. When it took office
in 1993, the Clinton Administration recognized that the lack of reference materials and finding.
aides for government records was a problem. Although “the federal Government spends billions
of dollar collecting and processing information (e.g., economic data, environmental data, and
technical information),” President Clinton observed, “many potential users do not know that it
exists or do not know how to access it. We are committed to using new computer and networking
technology to make this information more accessible to the taxpayers who paid for it."* The
‘OMB, however, has not made inventorying agency record systems and providing the public with
information on what is available a consistent priority.

First, the OMB has not pressed agencies to comply with the Paperwork Reduction Act’s
mandate that each agency maintain a “current and complete inventory” of their information
resources. 44 U.S.C. § 3506(b)(4). Indeed, the National Archives and Records Administration
estimates, based on anecdotal evidence, that only 35% to 45% of the records of Federal agencies

are now inventoried and scheduled within two years of their creation.

* Technology for America’s Strength, A New Direction to Build Economic Strength (Feb.
1993).


143

Mr. Horn. So in other words, you think by February 1, 1999 a
lot of our questions will be answered?

Mr. HurF. Yes. All of those on the number of FTEs, backlogs, av-
erage number, median number of days, yes.

Mr. Horn. And you will have comparability there, I assume,
based on those instructions?

Mr. Hurr. We very much hope so.

Mr. Horn. OK. On electronic access to information, which the
1996 amendments were all about, have you made available online
just in your own operations a guide for the public explaining how
to locate or request information?

Mr. Hurr. Yes, we have. We have a reference guide that is avail-
able in paper copy and it is also available online.

Mr. Horn. So they could go to a computer, press the Windows
and all of that?

Mr. HurF. Go to Department of Justice, and then look at Depart-
ment of Justice FOIA button and that is going to lead you to it.
If you hit the FOIA button, it will lead you to an FOIA home page
and that guide is on there.

Mr. Horn. You can do that through the internet also, or is it
simply that they have to go to one of your electronic reading
rooms?

Mr. Hurr. No, no, they can do that through the internet.

Mr. Horn. OK. And websites and all that?

Mr. Hurr. Yes.

Mr. Horn. Mr. Collingwood, is that your situation, too?

Mr. CoLLINGWoop. Yes. We are under the umbrella of the De-
partment of Justice, the sites are linked and we are encompassed
by theirs, which covers all of the components.

Mr. Horn. How about NASA? Is that generally the way you are
functioning?

Ms. RIEP-DICE. Yes, sir. We have a guide that we established.

Mr. Horn. OK. How about Energy?

Mr. Lopez. No. That is part of our DOE web page design which
we hope to have up in a couple of weeks.

Mr. Horn. Are outside consultants essentially doing that for you
or do you do it internally?

Mr. Lopez. Up to this point we have done it internally, but we
are talking to an outside consultant with respect to the other com-
ponents of the program.

Mr. Horn. So what is the status, then, of your electronic reading
rooms? I take it with your exception they are all in place, are they,
right now?

Ms. RiEp-DICE. Yes.

Mr. Horn. Do I see three nodding heads, almost three nodding
heads?

Mr. Hurr. If I may, almost every one of ours are in place.

Mr. Horn. OK. Now, Mr. Lopez, staff informs me that the De-
partment of Energy is providing electronic access only for those
who actually go to DOE headquarters, is that correct?

Mr. Lopez. That is correct.

Mr. Horn. Now, that defeats the purpose of electronic access,
doesn’t it?


10

Findings
‘Overall, this study found that

In a mayonty of agencies, EFOIA information 1s difficult to find online. Its rarely visible on
the agency's main home page, and often takes a great deal of searching to find even a hunt The
‘Amendments did not require that the information be easily found, so this isnot a quantified item 1n
this report; it is an observation based on review of the 135 web sites.

More specifically, of the $7 agencies examined (Appendix D of the OMB Watch report), 13
(23%) have no EFOIA presence, 44 (73%) have varying degrees of compliance with the
requirements, and, as of January 31, 1998, no agency had complied fully with the
Amendments (Append D shows NASA as hvigJuliled al the requirments, bu 8 hey sed
OMB Guidance for the index of major info that they have not
with the amendments.)

While the vast majority of agencies have yet to fulfill the requirements of the amendments,
there are a number of exemplary EFOIA implementors that should be applauded for their
work. For example, the Department of Defense and the Federal Communications Commission
maintain excellent search engines and home pages to make research easy and information
accessible. Others, such as the Small Business Administration and the National Science
Foundation provide forms to submit FOIA requests online, accelerating the public’s access to
federal government information. Still others such as the Veteran's Administration accommodate a
variety of low-tech and high-tech users by using with audio-visual, and text-only sites.

In the best cases, agencies see the EFOIA as an opportunity to help both citizens and
themselves. Many agencies have found that when information frequently requested under FOLA is
vided electronically, especially over the internet, the number of requests for this information

declines substantially and agency resources are saved.

In agencies that have decentralized the responsibility for EFOTA to satellite offices in
different units within the agency, there is often an uneven dissemination of information due to
a “hands-off” approach. While some departments or bureaus of an agency have excellent EFOIA
guides, indexes and reading rooms, others have absolutely no information disseminated online.

‘Agencies are moving at a great speed to provide information online. Unfortunately, this
information is often unorganized, unrelated, and difficult to find. In many cases, agencies may
have complied with EFOIA requirements, but we were unable to verify this compliance because no
clear markers for this information existed on these web sites.

The Office of Management and Budget (OMB), assigned the responsibility of providing
guidance on the implementation of EFOIA, had done little to aid agencies in fulfilling their
requirements. Agencies, therefore, looked to the Department of Justice for detailed explanations of
‘the amendments as well as guidance and examples of implementation and reporting. While the DOJ.
information is very useful, its availability docs not relieve OMB of its responsibility to ensure that
agencies have adequate information to implement the law.

OMB Watch -3-


141

‘Summer 1997

FOIA UPDATE

median number of days to process
B. Stamis of pending requests.
"© Agencies using multiple tracks may provide
‘numbers for each track, as well as totals.

. Number of requests pending as of end of
‘current fiscal year
(Enter this number from Line

2, Median number of days that such requests
were pending as of that date __
VIL. Comparisons with Previous Year(s) (Optional)
'= Agencies should state comparisons both in total
numbers and in percentage of change.
"Note that the agency's annual report for 1997
‘covers a partial calendar year.

A. Comparison of numbers of requests received

2

Comparison of numbers of requests processed

C. Comparison of median numbers of days requests
were pending as of end of fiscal year

9

Other statistics significant to agency

m

Other narrative statements describing agency ef
fors to improve timeliness of FOIA performance
and to make records available tothe public (¢.8.,
backlog-reduction efforts; specification of average
umber of hours per processed request; training
activities: public availabilty of new categories
of records)

TX. Costs/FOIA Staffing
"= Both large and small agencies should provide
information in the format presented below.
' Agencies may additionally use chart format for
breakdown by multiple agency components.

A. Staffing levels.

1. Number of full-time FOIA personnel

2. Number of personnel with part-time or ooca-
sional FOIA duties (in total work-years)

. Total oumber of personnel (in work-years)

1B, Total costs (including staff and all resources).

4. FOIA processing (including appeals)

2 Latigation-related activives (estimated)

3. Total costs

4, Comparison with previous year(s) (ineluding
percentage of change) (optional)

CC. Statement of additional resources needed for
FOIA compliance (optional)

Fees

'© This includes charges for search, review, docu-
‘ment duplication, and any other direct costs per-
‘mitted under agency regulations.

A, Total amount of fees collected by agency for
Processing requests

B. Percentage of otal costs

XI. FOIA Regulations (Including Fee Schedule)
© Agencies should provide electronic link for avail-
abitity in electronic form and attach copy in
paper form,

ANNUAL REPORT SUBMISSION PROCEDURE

‘Agencies should prepare their annual FOIA reports in
this format beginning with their annual reports covering
the period October 1, 1997 to September 30, 1998. Con-
‘gress changed the annual reporting period from a calendar
‘year t0 a fiscal year as of fiscal year 1998--which leaves a
‘nine-month reporting period for calendar year 1997 re-
ports to Congress under the old timetable and reporting
Tequirements. See EOIA Update, Winter 1997, at 6 (ad-
vising that new reporting requirements and timetable ap-
Hy to neter 1996 nor 1997 annual reports).

Under the Electronic FOIA amendments, agencies are
given four months to prepare their annual reports after the
conclusion of each fiscal year. The amendments provide
that by February { of each year (beginning February 1,
1999), each agency must complete its annual FOIA re-
port and submit it to the Department of Justice. See $
U.S.C. § 552(€)(1). ‘The Department of Justice, in turn,
will make all annual reports available “at a single elec-
tronic access point” and notify Congress that this is done.
5.U.S.C. § 552(eN3). ‘The statute strongly compels all
agencies to make their annual repons available to the pub-
fic electronically, through placement on their own World
Wide Web sites.’ See 5 U.S.C. § 552(€)(); see also
HLR. Rep. No. 104-795, at 28 (1996).

To facilitate this process, each agency should simply
send a copy of its annual report to the Office of Informa-
tion and Privacy by no later than February 1 of each year,
‘with an indication of its location on the World Wide Web,
Any agency unable to do so should contact OTP in ad-
vance.) The Department of Justice will establish and
maintain a World Wide Web site devoted to the compila-
tion of all annual FOIA reports as of February 1999.



29

‘on-line based on a senes of factors If the factors in regulations are used to assist the agency in
determining whether records are likely to become subject to repeated requests, they will be
helpful. If, however, the agencies use these factors as a basis for claiming records that have, in
fact, become subject to repeated requests, need not be made available on-line because the agency
does not believe that they deserve that status, these regulations will undermine the statute's
mandate. Similarly, if agencies do not make records that experience shows are likely to become
subject to repeated requests available on-line because the records do not satisfy some additional
test in the agency's regulations, the mandate of the statute will be thwarted.

Second, the Department of Justice has encouraged agencies to interpret the statute as
limiting the obligation to make repeatedly requested records available on line to records created
by the agency. Under the Department's interpretation, all repeatedly requested agency records
created after November 1, 1996 would be available in the agency's regular Reading Room for
paper records, but if the agency obtained the record from another agency or a private party, it
would not be required to make the record on-line in the agency's Electronic Reading Room -- even
if the agency received the information in electronic form.

To support this claim, the Department must read into the statute language that simply is
not there. The statute states that the Electronic Reading Room requirement applies to records
“created on or after November 1, 1996," but the Department insists that this language should be
read to mean records "created by the agency on or after November 1, 1996." To date, only eight

agencies have adopted or proposed regulations that limit on-line access to records created by the

See Department of Defense Regulations, 32 C.F.R. § 286.7(b)(4), 62 Fed. Reg. 35357
Guly 1, 1997); AMTRAK regulations, 63 Fed. Reg. 7312 (Feb. 13, 1998) (to be codified at
49 C.F.R. § 701.4(c)); Department of Agriculture Proposed Regulations, 63 Fed. Reg.
24,469-70 (May 4, 1998) (to be codified at 7 C.F.R. 1.4(a)(4)).

12


98

Mr. Horn. Ms. Riep-Dice.

Ms. RiEP-DIcE. Good morning. I would like to thank you for the
opportunity to appear before this committee to discuss NASA’s im-
plementation of the EFOIA.

NASA is a civilian agency dedicated to research and development
in space and aeronautics. Unlike the other members of this panel,
NASA is not an enforcement or regulatory agency. We are char-
tered through the National Aeronautics and Space Act to provide
for the widest practicable and appropriate dissemination of infor-
mation concerning its activities. We take this very seriously.

Beyond this obligation, NASA, like all other Federal agencies
and departments, is obligated to provide information to the public
under the FOIA unless the information meets one of the statutory
exceptions. The enactment of the EFOIA is the next logical step to
ease public access to government information.

After the enactment of EFOIA, NASA analyzed the EFOIA man-
dates. We then met with the appropriate officials at the Depart-
ment of Justice and received their full support and encouragement
to proceed. Listed below is a chronology of the major events.

In April 1997, all NASA FOIA offices and offices of chief counsel
were notified of the final passage of the EFOIA. We established an
electronic FOIA reading room on the NASA headquarters FOIA
home page, which had been in existence for over a year. A FOIA
guide for requesters was posted on the headquarters FOIA home
page. NASA created this guide to be informal and user friendly.
The NASA headquarters FOIA home page was relocated to the en-
trance level of both the NASA headquarters home page and the
agency home page to facilitate public access.

In May 1997, at NASA’s annual FOIA conference, headquarters
notified all NASA center FOIA offices of the steps that head-
quarters had taken and provided them with the guidelines nec-
essary for the establishment of the center FOIA home pages.

In June 1997, the chief information officer, in coordination with
the Offices of Public Affairs and General Counsel, issued a CIO ex-
ecutive notice, 21-97, directing each center to establish and main-
tain an electronic reading room on the World Wide Web by Novem-
ber 1, 1997. The notice also directed each center to establish a
FOIA home page with an electronic mail address to each site, be-

inning with FOIA at the appropriate center.nasa.gov. The notice
further directed that the FOIA home page must reside prominently
on each center’s home page so that the general public could easily
access it.

These FOIA home pages satisfy several of the requirements of
the EFOIA. They contain electronic reading rooms, instructions on
processing a FOIA request, links to other NASA sites, both FOIA
and the front entrances, and other information as deemed appro-
priate by a center. The Office of Public Affairs provides guidance
on the information to be placed in the electronic reading rooms.

In June 1997, NASA headquarters employees were notified via
an electronic message and the center public affairs directors, via a
memorandum by the acting associate administrator for public af-
fairs, of the establishment of the electronic reading room on the
NASA headquarters FOIA home page as a result of the enactment
of the EFOIA. By early this summer, NASA will publish our re-


FOIA UPDATE

2. Number of appeals processed during fiscal year

B. Disposition of appeals.

1. Namber completely upheld
2. Number partially reversed

3. Number completely reversed

‘8. number of times each FOIA exemption used
(Counting each exemption once per appeal)

(1) Exemption 1

(2) Exemption 2

(3) Exemption 3

(4) Exemption 4
(5) Exemption 5

(©) Exemption 6

(D) Exemption 7(A)
(8) Exemption 1B)
(9) Exemption 1(C)
(10) Exemption 7(D)
(11) Exemption 7(€)
(42) Exemption 71)
(13) Exemption 8

(14) Exemption 9

|. Other reasons for nondisclosure (total)
a. no records
b. referrals

request withdrawn

fee-related reason

‘e. records not reasonably described

not a proper FOIA request for some other
reason

& Rot an agency record

duplicate request

i. other (specify)

VIL. Compliance with Time Limits/Status of Pending

Requests
‘© IF an agency believes that ‘average time” is a
better measure of its performance, it should

include that as well.

1 For decentralized agencies, calculating an
agency-wide median may be difficult; a
reasonable estimate may be used instead.

' Both large and small agencies shovld provide
information in the format presented below.

© Agencies may additionally use chart format for
breakdown by multiple agency components.

‘© Agencies should count days from the time at
which a request is “perfected.”

© Agencies should separately report each track
‘of a multi-track system, as well as an “expe-
dited processing” track, and may report any
‘other type of request at their option.

= Example for calculation of median: Given 7
requests completed during the fiscal year, aged
10, 25, 35, 65, 75, 80, and 400 days from
date of perfection fo date of completion, the
total number of requests completed during the
fiscal year would be 7 and the median age
‘of the completed requests would be 65 days.

‘© Example for calculation of median: If there
‘were 6 pending cases aged 10, 20, 30, 50,
120, and 200 days from date of perfection to
date of completion, the total number of re-
{quests completed would be 6 and the median
age would be 40 days (the average of the 2
middle numbers).

‘A, Median processing time for requests processed

during the year
1. Simple requests (if multiple tracks used).
‘2. number of requests processed

b. median number of days to process

Complex requests (specify for any and all
«racks used)

2, number of requests processed
'b. median number of days to process

Requests accorded expedited processing,

a. number of requests processed


91

PROCESSED.

WE HAVE ESTABLISHED A BACKLOG MANAGER
WHOSE SOLE FUNCTION IS TO LOOK FOR WAYS TO
INCREASE THE EFFICIENCY WITH WHICH WE
PROCESS REQUESTS; TO BETTER MANAGE THE
FLOW OF PENDING REQUESTS; AND TO ORGANIZE
AND MAINTAIN THE REQUEST QUEUES

CONSISTENT WITH EFOIA.

WE HAVE ESTABLISHED A PUBLIC INFORMATION
OFFICER WHO FUNCTIONS TO HELP THE PUBLIC
IDENTIFY RECORDS, MAKE REQUESTS AND

ACQUIRE INFORMATION.

WE HAVE ESTABLISHED A NEGOTIATION TEAM,

CONSISTENT WITH EFOIJA, TO HELP MEET THE

5


1

+ The guidance that OMB Aad provided has led some agencies to be out of compliance with the
Inv, Apni 7, 1997, guidance from OMB on the index requirements of the Amendments
recommended “establishing a Government Information Locator Service (GILS) presence.”
Eighteen agencies (32%) have taken this advice, regardless of whether their GILS “presence” met
the requirements of the Amendments or not.

This study indicates that overall, agency compliance with the EFOIA amendments bas been
overwhelmingly inadequate. There are three overriding reasons for this conclusion:

1. Congress has not provided the necessary funding to carry out the implementation of the
amendments,

2. OMB has not provided adequate guidance or assistance to agencies during the implementation
process.

3, Agencies have yet to make public access to government information a priority.

What EFOIA Information Is Available?

FOIA Guides to Requesting Information

The EFOIA amendments require each agency to create a guide for the public detailing how to request
information, While many agencies have provided an online guide, the best agency EFOIA web sites also
‘explain the rights guaranteed to the public through the FOIA and its amendments, an example being the
Federal Deposit Insurance Corporation (FDIC). They clearly articulate not only how to go about requesting
‘information, but also what information can and cannot be accessed under the FOIA and EFOIA. Many
FOIA web sites, however, contain legal or bureaucratic language to describe their guides, index and
information holdings online.

Indexes
The 1996 EFOIA amendments require that agencies provide an index of all major information systems.
‘Some have failed to meet this requirement because they followed OMB's April 1997 guidance (rescinded
‘on April 23, 1998) and used their GILS as their EFOIA index. The GILS, as required by OMB Bulletin
95-1, describes “automated information systems” but does not provide “an index of all major information
systems of the agency” nor “a description of major information and record locator systems maintained by
the agency” as required by EFOIA. As a result many agencies have fallen short in this area. The Securities
and Exchange Commission (SEC), for example, followed this advice. In ther leter responding to our
request for information, the SEC responded that, “the description of major information systems of the
agency is available at the Commission's Government Information Locator Service.” The Pension Benefit
Corporation and the Federal Energy Regulatory Comunission also followed OMB’s guidelines.
Each provides other information required under the EFOTA amendments, but both limit their index of
“major information systems” to their GILS. At the extreme, the Equal lity Employment
Commission seemed to take OMB’s guidance more literally, posting only its GILS, but no other
information required by EFOIA on its web site.

Itis also often difficult to determine what online indexes are describing. Many times an index of the web
site exists, but an index to all the agency's “major information systems” does not, This can be very
confusing, and at times, misleading, For example users may believe they are looking at an index of all

OMB Watch ~4-


97

WORKING WITH REQUESTORS TO MORE

EFFECTIVELY MEET THEIR NEEDS.

* NEW CASES ADDED TO OUR READING ROOM WILL

BE ADDED IN AN ELECTRONIC FORMAT.

MR. CHAIRMAN, RESPONSIVENESS UNDER FOIA IS
AN IMPORTANT FACTOR IN MAINTAINING THE TRUST AND
CONFIDENCE OF THE AMERICAN PEOPLE. WE VERY MUCH
APPRECIATE THIS COMMITTEE'S ATTENTION TO THE ISSUE
AND THE SUPPORT CONGRESS HAS GIVEN US. I CANNOT
STATE THAT ALL OF OUR PROBLEMS ARE SOLVED, BUT WE

ARE CONFIDENT THAT THE COURSE WE ARE PURSUING

WILL ELIMINATE OUR BACKLOG. MORE THAN ANY OTHER
ACHIEVEMENT, WE BELIEVE THIS IS THE MOST IMPORTANT

TASK BEFORE US.

a


102

Dunng May 1998 the NASA HQ FOIA Homepage has received a total of 162,911
visitors. We are proud that NASA’s FOIA Homepage has been recognized in trade
publications during the last year, i.e., Government Executive, Government Computer
Magazine and the Department of Justice FOIA Update, as a leader in meeting the needs
of the public through the innovative use of information technology.

The establishment of the Electronic Reading Room has reduced the number of FOIA
requests for documents that are consistently requested through FOIA (i.e. Impact Credit
Card Listing, Shuttle Mixed Fleet Manifest and Unidentified Flying Objects) because
they are directly accessible by the public. While it is too carly to tell whether the overall
number of FOIA requests will be reduced as a result of establishing the Electronic
Reading Room, this is a promising trend.

Although the FOIA Homepage has reduced the number of requests for certain frequently

requested documents, it has increased the number of electronic requests. NASA believes
that with the passage of time and the electronic medium replacing paper, this could create
cost savings in the future while improving public access to NASA information.

Mr. Chairman, this concludes my testimony. I would be happy to answer any questions
you or other Members of the Subcommittee may have.


118

Mr. Horn. Every year?

Mr. Lopez. Yes, because some of those cases involve declassifica-
tion review, again, in coordination with other agencies.

Mr. Horn. And you decide that within the agency itself?

Mr. Lopez. Well, the cases that involve classified information or
information that has been generated by other agencies are sent to
the other agencies, and we continue to carry them on our case load
until it’s closed up by the other agencies.

Mr. Horn. In other words, the redactions, as they call them lov-
ingly, those are strictly agency decisions then——

. LOPEZ. Yes, sir.

Mr. Horn [continuing]. Or are they sometimes kicked over to
other security?

Mr. Lopez. They’re kicked over to other security because of other
security issues.

Mr. Horn. You relate to the Department of Defense very closely.

Mr. Lopez. Department of Defense and other agencies as well.

Mr. Horn. Yes. I won’t ask where’s the Roswell file. I’m tempted,
but that’s another day.

Mr. SUNUNU. Mr. Chairman, if I could just interrupt on that
point for clarification. Mr. Lopez, you're saying that the declas-
sification process somehow interferes with Freedom of Information
Act requests?

Mr. Lopez. Well, the declassification—well, this is part of the
work that is done by the Office of Declassification under the Execu-
tive order. There are also responsibilities to declassify or review
certain information and so, yes.

Mr. SUNUNU. But your group is the Freedom of Information Divi-
sion, correct?

Mr. Lopez. That’s correct.

Mr. SuNUNU. So again, what impact does the declassification
have on your work?

Mr. LopEz. The impact is that the Office of Declassification is the
only office that has the authority to review classified information
and to declassify it if it no longer falls within the scope of the pro-
visions of either the Executive order or the Atomic Energy Act clas-
sification.

Mr. SUNUNU. But your office isn’t asked to review all of these
documents that have been declassified?

Mr. Lopez. That’s right.

Mr. SUNUNU. So the 450 or so backlog requests that you spoke
of—how many of those are projects that have been initiated by the
declassification group?

Mr. Lopez. I don’t have that exact number, but I will supply it
for the record, if I may.

Mr. SUNUNU. Roughly, how many?

Mr. Lopez. I’d say more than 100 of those cases.

Mr.-HorN. So you have 419 requests and you're saying over 100
of those involve review for declassification?

Mr. Lopez. That’s correct.

Mr. Horn. And that takes you 495 days?

Mr. Lopez. As an average.

Mr. Horn. As an average. We're talking basically five quarters.

Mr. Lopez. Right.



65

Congress amend the exemptions themselves if it intends to alter

the Reporters Committee holding.

The Department of Justice gave no deference to Congress’
finding, stating:

(P}laintiff is asserting that the Supreme Court's
holding in Bibles v. Oregon Natural Desert Assn.

Ss. , 117 S.Ct. 795 (1997) is no longer valid law
due to the enactment of the “Electronic Freedom of
Information Act Amendments of 1996.” The holding in
Bibles arises from the long-standing precedent of U.S.

+ 489 U.S. 749,
772-75 (1989), where the Supreme Court held that the
public interest to be balanced is limited to the
public's interest in being informed about “what their
government is up to.”

Plaintiff is relying on a general purpose
statement which he cites in his cross motion to argue
that Amendments to the FOIA have overturned long-
standing Supreme Court precedent. However, there is
nothing in the legislative history which indicates any
intent on the part of Congress to effect such a change.
See Pub.L. 104~231. If it had intended such a drastic
impact by its general statement of purpose in the
Amendments, Congress surely would have stated so.

If it had intended to alter the balancing of
interests with regard to the privacy-related
exemptions, Congress could have amended the exemptions
themselves. The exemptions applicable here, FOIA
exemptions 6 and 7(C), 5 U.S.C. ¢552(b)(6) and

‘We note that neither of the privacy exemptions includes any
statutory language at all regarding balancing of interests. The
balancing test is purely a creature of the legislative history of
Exemption 6:

The phrase “clearly unwarranted invasion of personal
privacy” enunciates a policy that will involve a
balancing of interests between the protection of an
individual's private affairs from unnecessary public
scrutiny, and the preservation of the public's right to
government information. S. Rep. No. 813, 89" Cong., 1%
Sess. (1965) at 9. See also H.R. Rep. No. 1497, 89"
Cong. 2d Sess. (1966).


71

when we have a $5.3 trillion national debt and you have to balance
the budget, OMB has focused most of their energy at the highest
level strictly on the budget, and I can understand that.

So we want to give the President a group, a very small group of
people that are involved in some of these proposals.

low, we do have other options. You have the General Services
Administration that runs the Advisory Council law; you have—and
we will be discussing this later—part of the Department of Justice,
which has been involved in this; and the question is, is it best in
an executive office, part of the Executive Office of the President, or
should it go out to an agency? I personally think it should be in
the Executive Office of the President, but good people might have
different solutions to the problem.

Ms. McDeErmorr. Exactly.

Mr. Horn. Well, that is very helpful.

Let me ask you all, what do you regard as the major issue under
the 1996 amendments that has not been reached? And what would
you say the biggest problem is and the biggest frustration is? We
will just go down the line and get it on the record. I think it is
pretty similar, but I want to make sure.

Ms. McDERMOTT. Well, I think for OMB Watch—and we are not
FOIA litigators, so our emphasis is a little different—I think the
biggest frustration is the very clear indication that OMB and the
agencies in general—not every agency, some are very, very good
and some have done an excellent job on information research man-
agement on this and other aspects—but in general, the agencies do
not put, and it is evident that they do not put a priority on pro-
viding public access to what is public information and that the pub-
lic has a right to. As Mike Tankersley mentioned, OMB puts a very
low priority on this and does not devote any resources to it beyond
what is minimally required.

Mr. Horn. Mr. Tankersley.

Mr. TANKERSLEY. Mr. Chairman, I would agree with that. I think
in answer to your question, the biggest disappointment from our
perspective is that the affirmative online disclosure requirements
are being treated in a number of agencies not as requirements, but
as something to be aspired to at some indefinite point in the future;
and that is our biggest disappointment with the implementation of
the amendments so far.

h Mr, Horn. Is that disappointment also the largest problem we
ave?

Mr. TANKERSLEY. Yes, I believe so. I think that has the biggest
effect in terms of the amount of information that is out there. In
contrast to the experience with agencies like the NRC, there are
many other agencies that are not treating those provisions as
something that they are required to do now.

Mr. Horn. Mr. Riccio.

Mr. Riccio. I guess our greatest concern is that the amendments
not be used as a pretext for wiping out the underlying files or clos-
ing the document rooms.

For example, because of all of the problems that have occurred
in Connecticut with their reactors, eight different utilities ordered
the entire docket of their nuclear power plant to be copied and sent
to them. Now, with a shift of that information over to electronic


16

A member of the public looking for the USTR’s reference mate-
rials for information on the agency’s records would be seriously
misled because the description that the USTR provides to the pub-
lic describes only six information systems and omits many other
record systems that are held by the agency, including records on
multilateral trade negotiations, press release compilations, reports
and advisory committee files. Very few agencies have current and
complete indices of the record systems, and the descriptions of
agency records made available to the public, like those of USTR,
omit critical records systems.

Although OMB is responsible for providing direction on agencies’
implementation of these provisions of the 1996 amendments, it has
done little to encourage agencies to prepare comprehensive, user-
friendly handbooks.

The legislative history concerning this section shows the Con-
gress expected OMB to ensure that agency guides follow a common
format and use common terminology to describe record systems and
locator systems. Instead, OMB’s directions to agencies give mini-
mal information on what the handbook should contain and discour-
age the use of common formats of terminology. OMB has shown lit-
tle enthusiasm for encouraging full compliance with the 1996
amendments and their mandate that the agencies provide the pub-
lic with descriptions of the major information systems.

Second, the 1996 amendments promise to significantly improve
public access by requiring agencies to establish electronic reading
rooms which will make available online agency decisions and state-
ments concerning the application and interpretation of the law, and
repeatedly requested records that have become or are likely to be-
come the subject of subsequent requests for substantially the same
information.

Despite this clear mandate, many agencies have not established
electronic reading rooms; and even where the reading rooms exist,
the information is sometimes arranged in ways that are confusing.

Other problems with the implementation of this provision have
also arisen because agencies have sought to limit the types of
records that are made available online. A few agencies have sug-
gested that they may limit the repeatedly requested records avail-
able online based on the agency’s own assessment of the impor-
tance of the records.

The Department of Justice has encouraged agencies to interpret
the statute as limiting the obligation to make repeatedly requested
records available online to records created by the agency, even
though the statute contains no such limitation. These efforts to
avoid full compliance with the reading room provision undermine
public access.

Finally, full implementation of the online access requirements re-
quires that agencies adopt better procedures for managing and pre-
serving their electronic records. If agencies manage and preserve
their electronic records only on paper, it will be more cumbersome
and costly for government to make them available to the public in
electronic reading rooms. However, neither the National Archives
nor OMB have provided meaningful leadership on this issue, and
the vast majority of Federal agencies do not have policies in place


99

vised FOIA regulations which will reflect all changes required by
the EFOIA.

NASA headquarters, we are proud to say and are fairly confident
in saying, was the first U.S. Government agency to establish a
FOIA home page which satisfied the EFOIA reading room require-
ment, approximately 8 months in advance of the November 1997
deadline. Today, all of our centers have a FOIA home page on the
web. Although they may vary in design, all of the home pages con-
tain the information required by the EFOIA.

In addition, NASA began accepting electronic FOIA requests in
May 1997. While this is not a requirement of the EFOIA, we be-
lieve it facilitates public access.

Since January 1998, the NASA headquarters FOIA office has re-
ceived approximately 500 electronic FOIA requests. Many of those
requests are for documents that are already publicly available
without submitting a FOIA request.

During May 1998, the NASA headquarters FOIA home page re-
ceived a total of 162,911 visitors. We are proud that NASA FOIA
home page has been recognized in the trade publications during the
last year, such as Government Executive, Government Computer
Magazine, and the Department of Justice FOIA update, as a leader
in meeting the needs of the public through the innovative use of
information technology.

The establishment of the electronic reading rooms has reduced
the number of FOIA requests for documents that are consistently
requested through FOIA, because they are directly accessible by
the public. While it is too early to tell whether the overall number
of FOIA requests will be reduced as a result of establishing the
electronic reading room, we believe this is a promising trend.

Although the FOIA home page has reduced the number of re-
quests for certain frequently requested documents, it has increased
the number of electronic requests. NASA believes that with the
passage of time and the electronic medium replacing paper, this
could create a cost savings in the future while improving public ac-
cess to NASA’s information.

Mr. Chairman, this concludes my testimony, and I will be happy
to answer any questions you may have.

[The prepared statement of Ms. Riep-Dice follows:]


21

keeping systems, and indexes of repeatedly requested records should be available at the agency
for the asking, and over the Internet.

‘Some agencies have prepared excellent handbooks for the public describing how to obtain
records from the agency under the FOIA. The Federal Communications Commission and the
Nuclear Regulatory Commission are examples of agencies that provide useful handbooks to the
public.”

Many agencies, however, have been slow to comply with this requirement, or have ignored
it altogether. For example, when Public Citizen requested a copy of the Department of
Education's handbook at the end of 1997, the Department's FOIA Officer responded by sending
a copy of the House Committee on Government Reform and Oversight’s publication, “A
Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request
Government Records”? -- a publication that was not prepared by the Department of Education and
does not describe the Department of Education's record holdings or procedures for requesting
records under the FOIA. In December 1997, Public Citizen filed suit against several agencies
challenging their failure to comply with Section 552(g).* At the time we filed suit, two of the
principal components of the Executive Office of the President, the Office of the United States
Trade Representative and the Office of Administration, still had not prepared handbooks as

required by the 1996 Amendments, After the suit was filed, these agencies released their

? United States Nuclear Regulatory Commission, Citizen's Guide to U.S. Nuclear
Regulatory Commission Information (1995), Federal Communications Commission ,
Guide: is is (Jan. 1997).
> H.R. Rep. No. 37, 105th Cong., 2d Sess. (March 20, 1997).
“ See Public Citizen v, Raines, D.D.C. 97-2891 SSH (filed Dec. 4, 1997).

4


50

its databases to retrieve electronically the information he
needed. Another provided him an 80-pound printout instead. It
may never again be necessary for requesters to spend the
countless hours Dedman did to retrieve information by hand from
that mammoth document.

Other reform measures have been less effective

The EFOIA legislation also sought to allay the two other
most severe problems faced by requesters trying to use the FOI
Act: the failure of agencies to provide responses timely enough
to be useful, and a serious misinterpretation of Congress’
purpose in enacting the FOI Act that has led to overuse of the
privacy exemptions to the Act.

Measures to reduce delay need close monitoring

The new Act attempted to address delays in several ways. It
provides for expedited review in compelling circumstances. It
provides for multitrack processing which allows shorter, less
cumbersome requests to be processed in order of receipt on one
track while longer requests are processed on another. And
although the Act extends the timeframe for responding to
requests, it does so with the caveat that routine backlogs are
not “exceptional circumstances" justifying delay.

Provisions in EFOIA for expedited review offer agencies an
opportunity to provide information right away when it is obvious
that the requester has a compelling need for the information. In
our view the legislation is based on sound principles, mandating

priority processing when a compelling need exists, particularly


95

WORKLOAD MANY OF THE PROVISIONS CODIFY WHAT

ALREADY IS OUR PRACTICE.

AGAIN, I WOULD LIKE TO PROVIDE SOME HIGHLIGHTS.

*

THE FBI IS COMMITTED TO PLACING ITS FOIA
PUBLIC READING ROOM ON THE FBI’S WEB SITE.
TO DATE, WE HAVE PLACED 37 OF OUR MOST
REQUESTED CASES ON-LINE, ENCOMPASSING
OVER 19,000 PAGES OF TEXT. SO FAR THIS YEAR
THESE CASES HAVE BEEN ACCESSED BY THE
PUBLIC OVER 1.4 MILLION TIMES. WE HAVE BOTH
THE TECHNOLOGY AND RESOURCES TO

EFFECTIVELY CONTINUE THIS PROCESS.

WE HAVE EXAMINED MANY POSSIBLE
AUTOMATED SYSTEMS FOR RECORD PROCESSING

AND RELEASE OF DOCUMENTS IN AN

9


33

Franklin D Raines, Sally Katzen
September 8, 1997
Page 2

and to assist the public in locating these records There are three reasons why instructing agencies,
that GILS satisfies their indexing obligations under FOIA frustrates these goals

First, OMB has limited the records that are covered by GILS in three critical respects.
(A) OMB has limited GILS to an inventory of agencies’ automated information systems. OMB
Bulletin 95-01 4.a(1). The FOIA Amendments contain no such limitation. Instead, the
Amendments require that agencies provide the public with “an index of all major information
systems,” including traditional paper records. $ U.S.C. § 552(g\(1). (B) OMB has also instructed
agencies that GILS should include locators for “information dissemination products,” and has
defined this term in a way that restricts GILS to catalogs of publications, maps, electronic records
or other materials “disseminated by an agency to the public.” Id, Thus, OMB's definition of GILS
does not include locators which index records that are not disseminated, but which are
nevertheless subject to disclosure under the FOIA. (C) Finally, OMB has specifically exempted
automated electronic mail and word processing systems from GILS. Id. 2. The 1996 FOIA
Amendments underscore, however, that such automated record systems are covered by the FOLA
and must be identified in the agency’s indexes of information systems.

Because of the limitations that OMB placed on GILS in Bulletin 95-01, where agencies
have followed OMB's guidance, the GILS records are generally limited to a catalog of
information systems or products that the agencies disseminate or make available to the public."
Agencies have not included in GILS a vast array of automated and manual agency record systems
that are subject to FOIA. These record systems need to be included in the agency indexes if these
indexes are to assist members of the public in identifying records that they wish to request under
the statute.

‘OMB's own GILS records provide an excellent illustration of this problem. OMB, based
on its own interpretation of Bulletin 95-01, has created only three GILS records: one for the
Budget of the United States; one for OMB’s Home Page on the Internet; and one for the Internet
link to OMB's system of Circulars and Bulletins. These three records clearly do not represent the
“index of all major information systems” that OMB must make available to the public to comply
with the 1996 Amendments to the FOIA. 5 U.S.C. § $52(g)(1). OMB has numerous automated
information systems for tracking budget information, proposed and approved regulations, and

agency procurement and management practices, that are not identified in its GILS records.
Moreover, OMB has numerous systems of paper files documenting its review and oversight of
agency budgets and information management practices. OMB also has numerous systems, both
manual and automated, for locating these records.

‘The Department of State provides another dramatic example of the problem with OMB’s
guidance. The State Department's compliance with the FOIA Amendments is particularly

"See Moen & McClure, An Evaluation of U.S. GILS Implementation, at 61 (June 30,
1997).


133

their own offices for particular information. Simply, some of those
requests take a tremendously long time to conduct all of the
searches, to gather all of the information, and then to process it.

I am familiar with at least one of those examples of a request
of that general nature in which we attempted to do just as Mr.
Collingwood has noted that he has had good success with, and we
often do as well, where we will call a requester and talk about it.
We have attempted to communicate with the requester and the re-
quester doesn’t want to communicate with us at all on it, and the
case has proceeded to litigation.

Mr. Horn. Can they receive some materials over the 4- and 5-
year delay?

Mr. Hurr. Oh, yes. I don’t mean to suggest that—the answer is
yes, they do receive partial disclosures as we are going along. I
don’t mean to suggest that that request is a 5-year request. It is
a very lengthy one, it is a very large one. And there are other
issues involved in that case involving other procedural matters as
well.

Mr. Horn. OK. The Justice testimony that you gave, essentially
you noted, as I did in the questions, that the Immigration and Nat-
uralization Service has a significant backlog. Do you have the data
on the INS in particular with you?

Mr. Hurr. I have a little bit of information on the Immigration
and Naturalization Service. I have—

Mr. Horn. Well, I am interested in what is a typical request
there and how many are pending? What is the standard delay in
time and so forth?

Mr. Hurr. I don’t have an exact answer, and one of the reasons
is the INS has in excess of 50 different offices, some of which, and
I just glanced at our annual report for last year, some such as Los
Angeles and Miami will have in excess of 1,000 cases in which they
have denied information; others will literally have 1 or 2 where
they have denied. In terms of that, I very much suspect the answer
is very minimal on those smaller ones.

It also should be noted with INS that in many of their cases they
are able to look at the particular file, an individual’s A file, alien
file, look at that, there is no law enforcement going on with respect
to the file, we are able to process it and provide a complete grant,
and those move quite quickly. So the backlog varies throughout
INS, depending on the particular offices.

Mr. Horn. Following from that, I realize we have to probably
send GAO into the INS. It is the only way I know to get at some
of this. But thinking back to when we were working on those
amendments in 1996, the Attorney General sent a memo to the
heads of all agencies and departments and asked for the informa-
tion on the FOIA backlogs at that point. Have you requested any
update on this information since then?

Mr. Hurr. No, we haven’t. And one of the reasons that we
haven't is that I think we are going to get extremely detailed data
that will be available February 1 next year. I think the agencies
are now compiling that data for the revisions to the annual reports
that are going to be made available electronically, and I think it
should be—I certainly hope it is going to be very easy to compare
one component within the department to another component, and


17
for jpanaging and archiving electronic records that are subject to

In summary, although Congress can enact statutes mandating a
new era of government disclosure, it is up to the agencies to make
those mandates a reality. Many of the most important provisions
of the 1996 amendments are not being fully implemented, and the
future of this legislation will depend on real leadership from OMB,
funding to promote efficient management and dissemination of
electronic records, enlightened policies on electronic records from
the National Archives, and a commitment from more agencies to
make access to agency records a priority.

Mr. Horn. We thank you for that statement. That gives us some
very good examples of where the problems are, and we appreciate
that.

[The prepared statement of Mr. Tankersley follows:]


61

at gave him in response to his FOI request.

Congress Acts to Clarify the FOI Act’s Purpose

In 1996, Congress acted to correct the Court's
misinterpretation of its purpose in enacting the FOI Act. Its
first finding in the Electronic FOI Act states that the FOI Act
is intended to establish and enable enforcement of the right of
any person to obtain access to government records, subject to the
exemptions, for “any public or private purpose.” In the
legislative history it makes clear that this finding means that
Congress did not intend the narrow interpretation of “core
purpose” articulated by the high court in Reporters Committee.

We cannot cite a single instance or case since passage of
the Electronic FOI Act in which the government or a court has now
accepted that the “purpose” of the FOI Act is to serve “any
purpose." In at least one case, discussed at length later in
this report, the government flatly rejected that finding and a
court has upheld its decision. It has been business as usual
with respect to the interpretation of “public interest” purpose
at both the agencies and the courts

After Congress passed the Electronic FOI Act but before it
was signed by the President, the federal District Court in

Washington, D.C., acknowledged in a footnote that the new

legislation would “effectively overrule” the U.S. Supreme Court's

holding in Reporters Committee. However, because the President


130

add on that would be helpful to the public, there’s even a specific
provision for that. But we have gone down all of the points that
Congress has required and we have set that out in our guidance.

Mr. Kucinicu. Now the 1996 law, as I understand it, had provi-
sions through which requesters could make expedited requests.
Have you had any requesters file for expedited requests?

Mr. Hurr. Yes, we have. And if I may, our experiences may be
somewhat different from Ms. Kirtley, who testified earlier with re-
spect to the Reporters Committee, and the reporters that she works
with.

We have seen relatively few requests at the administrative ap-
peal level, which is where I see them, where somebody, a reporter
or somebody who is an information disseminator has been denied
expedited treatment. We have seen very few of those, those ap-
peals. In fact, I should say I haven’t seen any of those.

We have seen other appeals that have been requested to be expe-
dited where there’s a threat to life, and particularly a number of
individuals who have death sentences that have been imposed on
them and have sought either their FBI or their Drug Enforcement
Administration files. If that is so, we expedite those requests. The
FBI does those.

We very rarely in the past several years have seen an appeal
from somebody where they didn’t expedite that. They may withhold
some information and then they ask us to expedite the administra-
tive appeal and we do that.

Mr. Kucinicu. Is there a relationship between you and the DEA
on vetting?

Mr. HurF. Pardon me, on what topic? We act on their adminis-
trative appeals. If the Drug Enforcement Administration or the FBI
or the Antitrust Division or any other component of the Depart-
ment of Justice denies a Freedom of Information Act request, the
statute requires they be given appeal rights, administrative appeal
rights. Those go to my office, and last year, we had 3,300 adminis-
trative appeals, 4,400 on an annualized basis. And DEA is one of
our components. Yes.

Mr. Kucinicu. OK. I’m glad to establish that. I have a little per-
sonal matter relating to an issue that I sent a letter I want you
to know about to DEA. And how long ago was that letter sent? I
sent a letter to DEA in late September, early October on a matter,
questioning them with respect to the policy on the use of Prozac
prescribed for children.

Mr. Hurr. Yes.

Mr. KUCINICH. It’s now June, and I have not received a response
from DEA. Perhaps they're busy working on the Freedom of Infor-
mation Act requests and not responding to Members of Congress,
but I thought I’d use this opportunity to—

Mr. Horn. I thought they only did that to the majority, you
mean they do that to the minority too?

Mr. Kucinicu. I want to tell you they are equal opportunity in
their lack of response.

Mr. Hurr. I will pass that on to the Department of Justice, and
we will be sure that DEA becomes aware of your concern.

Mr. Kucinicu. This is my last name, in case you need the files.
I appreciate that. I would like to hear from you about that.


114

Mr Lopez We're hoping to issue this in conjunction with the
issuing of our draft FOIA regs which will be coming out 1n the next
6 weeks.

Mr. SUNUNU. Does NASA have a formalized system?

Ms. Riep-Dice. We have an annual conference which we had in
April of this year. At that conference, we informed all of the FOJA
officers of the basic documents that they would have online. Any-
thing additional that they choose, they were capable of doing them-
selves. We told them that anything over two requests would auto-
matically go online. So we have told them formally at the con-
ference that that’s how they were to proceed.

Mr. SUNUNU. Approximately how many documents have been put
online subject to the multiple request requirement?

Ms. RiEp-Dice. At the moment I can only answer for head-
quarters. I’m not sure about our centers. Headquarters has six doc-
uments online now that we’ve had multiple requests for.

Mr. SUNUNU. And as a result, do you sense, at least at head-
quarters, that this has reduced the number of requests?

Ms. RIEP-DICE. Yes, sir.

Mr. SUNUNU. Putting additional documents?

Ms. Riep-Dice. Yes, several of the requests. One is the impact
credit card list, which, and I’m sure most agencies get them. We
would get up to five a week. We don’t get them any more. People
will just call us and say do you have them online?

Mr. SUNUNU. Mr. Collingwood, do you have a formalized system?

Mr. COLLINGWoop. We have a system for identifying those cases,
yes, Congressman. For us it’s—really a short answer to a com-
plicated situation is that we are, as far as our electronic reading
room goes, identifying those cases and putting them online based
on how often they’re requested, to cut down on the number of re-
quests. And we’ve had 1.4 million instances where people have
downloaded those files.

On the current requests that we have, we do have a process for
identifying those. In all honesty, our effort right now is to reduce
the backlog because it’s so high. And we do intend to identify cases
as they’re requested, multiple requests, and put them online. The
first case that probably will fall in that category is Andrew
Cunanan, the investigation.

Mr. SUNUNU. How high is the backlog?

Mr. COLLINGWOOD. The backlog currently is 11,889 requests,
which is astronomical, I understand, but down substantially from
where it was.

Mr. SUNUNU. And, to be clear, are you saying you do impose a
two-or-more request rule to put something in the reading room?

Mr. COLLINGWOOD. We have not yet, simply because if we did
that, it would have such a substantial impact on our ability to re-
duce the backlog that we can’t do that. Once the backlog is com-
pletely manageable and dropping at a satisfactory rate, then, yes,
we're prepared to do that.

Mr. SUNUNU. One question that I have is to what extent would
putting in place a rule and carrying it out help reduce the backlog?
It would seem that a number of the 11,000 requests are probably
for those documents that have multiple requests. Or are you sug-


116

The other one, quite candidly, is the fact that information tech-
nology and the requirements in how we go about getting a docu-
ment online is something that still occasionally bedevils us, when
we have a document in one format and we've got to move it into
another format and we've got to get it up online. And I’m sure that
there are 16-year-olds that can do that in minutes, but I’m sad to
say for some of us it takes far longer to do that, and that is one
of the aspects.

Also one of the techniques that OMB Watch suggested that can
be done in terms of better linkage back and forth Between a home
page—a FOIA home page, an electronic reading room and back and
forth, is something that almost every one of our components has
now incorporated, something that we hadn’t done before.

So these are some of the things where it may be—I don’t mean
to suggest that only OMB Watch has a 16-year-old helping them
with respect to that—where we have now said, yes, this is a good
idea and we’re doing that.

But the information technology problem is our second one. And
I do want to agree with Mr. Collingwood, backlogs are still I think
No. 1. But the two of them I see are both concerns.

Mr. Horn. Do you have sufficient modern scanning equipment
that can move it from one form into the other?

Mr. Hurr. In some parts of the Department of Justice, we do. I
think we need—my own view is we need more. There are parts of
the Department of Justice—and as you know, we've got over 30 dif-
ferent components of the Department of Justice; two of those com-
ponents, the INS and the FBI, have 50 field offices or district of-
fices that make disclosures themselves. So we have got in excess
of 100 different entities that are FOIA offices.

And the answer to your question is: Do you in every case? The
answer is no, not in every case.

Mr. Horn. Is there any way to share some of the latest equip-
ment, because these go through fairly rapid generations, with other
portions of the Department of Justice or even throughout the gov-
ernment? Is there some way we could solve that by a good tech-
nology and share it?

Mr. Hurr. That’s something that we are certainly working on.
Our Justice Management Division is an area where I think we are
most likely to find the most sophisticated equipment, and I think
that we are still working on getting greater availability of that.
Certainly that equipment has other requirements on it as well as
FOIA, but——

Mr. Horn. Mr. Collingwood, any additions to the resources and
the technology aspects that Mr. Huff has suggested?

Mr. COLLINGWoop. I think for the FBI it came down to three
things: One is eliminating the backlog, which is streamlining and
resource issues. Those have both been addressed either by us or by
Congress. Two is absolute commitment to get this job done and be
more responsive to the public. That has been addressed by both the
Attorney General and the Director. Three is what Dick says is tech-
nology. There is a lot of technology out there. It’s changing very
rapidly. Some of the systems that were developed to address FOIA
are now grossly outdated even though they’re only a couple of years
old.


affirmanve disclosures of Government information That 1s, the amended law requures agencies
to make certasn calegones of information available - including on the Internet - without wartng
{or individual Freedom of Information requests. Two, the amendments made changes to the
Freedom of Information requesting process itsef in an effort to make FOIA a more effective tool
for accessing Goverament information,

‘We wish to examine implementation of the various provisions in the 1996 amendments
that promote these two broad goals. In terms of affirmative disclosures, for example, the 1996
amendments require that agencies create “electronic reading rooms” on the Intemet. Agencies
must place online a variety of documents, including those that are likely to be repeatedly
requested under the Freedom of Information Act. This provision should have the effect of
satisfying many peoples’ information needs without going through the burden of the FOTA
process. But are agencies complying with this and other “affirmative disclosure” requirements?
A report we will discuss today by OMB Watch suggests that too many are not.

In terms of improving the FOIA process itself the 1996 amendments require that
agencies make available indexes of their major information systems. This would have the effect
of allowing requesters to make much more precise requests. But again, preliminary indications
‘suggest that agency compliance has been spotty at best.

Does anyone doubt the importance of citizen participation and Government
accountability? I hope not. But if there are other barriers to openness and access to Government
information, it is time to remove them.

‘We have two panels today. On the first are two public interest groups, a joumalist and a
researcher. They will tell us about how they use Government information, why it is important,
and how accessible it is under current practices. On the second panel are representatives from
four Federal agencies. They wil tell us about implementing the 1996 amendments to the
Freedom of Information Act.



93

OUR RECORDS FOR RELEASE.

WE HAVE ESTABLISHED A LITIGATION FUNCTION
TO RELIEVE LINE ANALYSTS OF THE BURDEN OF
HANDLING LITIGATION, THUS INCREASING THE

TIME AVAILABLE FOR PROCESSING.

WE HAVE INTENSIFIED TRAINING OF OUR
EMPLOYEES TO MAKE THEM MORE EFFECTIVE IN

THEIR ASSIGNED AREAS OF RESPONSIBILITY.

WE HAVE HIRED ALL OF THE NEW PEOPLE
CONGRESS FUNDED IN FISCAL YEAR 1997 AND
ASSIGNED THEM TO WORK IN NON-MANAGEMENT
POSITIONS THAT CONTRIBUTE DIRECTLY TO OUR

BACKLOG REDUCTION EFFORTS.


38

tories of every reactor, licensee event reports, and even the regula-
tions that govern the splitting of atoms.

Through the use of the online Federal Register, citizens can more
easily participate in the administrative process that governs nu-
clear reactors. They have more timely access to the proposed rules
governing the nuclear industry and the proposed license amend-
ments that affect those reactors. Since many comment periods of
proposed rules and licensing amendments are only for 30 days, this
instantaneous access to a proposed rule or amendment is impera-
tive if the public is to have time to digest the information and for-
mulate well-researched comments and responses.

Although the NRC still has a long way to go to improve the qual-
ity of participation in the regulations of nuclear power plants, the
improvements in the availability of information have made the lim-
ited opportunity to participate more meaningful.

While the EFOIA has undoubtedly increased the availability of
information, placing information online is not a panacea. In the
move from paper to computer, the government must be vigilant not
to lose information in the transition. We at the Critical Mass En-
ergy Project are aware of one case where this has already occurred.

Several years ago, we became aware of errors in the data base
used to track the number and severity of violations in the NRC reg-
ulations. According to NRC, as much as a third of the data was
missing and half of the data concerning severity levels was incor-
rect. To their credit, they have gone back in and repaired that data
base, but if NRC could not match a paper copy of the violation to
the computer record, the computer record would be deleted. This
has undoubtedly resulted in a loss of information.

Furthermore, the shift over to computer-based information
should not be used as a pretext for either closing the document
rooms or failing to maintain their libraries. While there has been
a great increase in the amount of information available over the
internet, it does not include all the documented information which
helped to make up the licensing basis for each of the nuclear power
plants. This is important because, absent that licensing basis, the
NRC cannot determine that any reactor operating in the United
States is safe.

In conclusion, the Electronic Freedom of Information Act Amend-
ments of 1996 have resulted in a substantial increase in timeliness
and amount of information available to the public and has
furthered the goals of the Freedom of Information Act by allowing
citizens to more meaningfully participate in the governmental deci-
sions that affect their lives.

Thank you for the opportunity to present our views; and if you
have any questions, I would be happy to try to answer them.

Mr. Horn. Well, thank you. You have given us some helpful ex-
amples, and you have pointed us in the direction of where there is
a failure in leadership, and I appreciate that.

[The prepared statement of Mr. Riccio follows:]


125

in for more than that in fiscal year 1998, and concluded based on
the streamlining we will not need all of those resources. So we cut
back to the 239 request, and we’re now confident that we have suf-
ficient resources to address the backlog.

r. Horn. Now, was that—did that request initiate in your of-
fice, or did it initiate elsewhere in Justice?

Mr. COLLINGWOOD. It initiated in our office.

Mr. Horn. In your office?

Mr. COLLINGWoop. It had strong support from the Department
of Justice.

mes Horn. So they didn’t cut you at the Attorney General’s level,
then?

Mr. CoLLINGWoop. No, sir.

Mt, Horn. And how about OMB? How were you treated by
them’

Mr. COLLINGWOOD. We survived the entire process, and got full
support from our appropriations committees.

r. Horn. So they didn’t cut your request at all?

Mr. COLLINGWOOD. No, sir.

Mr. Horn. You must have lucky charms. You’re about the only
member of the administration, probably in this and the last three
administrations, that can have a smile on your face when it comes
to resources. And how about Congress? We didn’t slash you, did we,
or did we?

Mr. COLLINGWOOD. No, sir, Congress was very generous. We
have adequate resources.

Mr. Horn. So they got the message it is a 4-year wait and
they’re trying to do something about it?

Mr. COLLINGWOOD. Yes, sir.

Mr. Horn. OK. Well, that’s good. How about NASA? What’s your
history fiscally in being able to get the resources to do the job?

Ms. Riep-DICE. We have been pretty good about retaining a suffi-
cient number of employees to process. We don’t really receive any-
thing compared to the FBI. The agency’s annual requests are 3,000
a year.

Mr. Horn. I’m sorry, NASA requested what, now, in resources
for this function?

Ms. Riep-DIce. Nothing, it was zero.

h Mr. Horn. Nothing new. How many full-time equivalents do you
ave?

Ms. Riep-DICE. Ten.

Mr. Horn. Ten, OK. And that’s been pretty stable over the
years?

Ms. RiEP-DICE. Yes, sir.

Mr. Horn. So you're not requesting any more?

Ms. Riep-Dice. We just requested one, and we got a part-time
person at the beginning of this year for headquarters; and our cen-
ters, one of the centers had requested a part-time person and re-
ceived that.

Mr. Horn. How many centers do you have around the country?

Ms. Riep-DIcE. Nine.

Mr. Horn. Nine. Is that based on regional offices?

Ms. RiEp-DICE. They're in different areas.

Mr. Horw. Or is it particular facilities?


100

Hold for Release
‘Unul Presented by Witness
June 9, 1998

Statement of

Patricia M Riep-Dice
Freedom of Information Act Officer
National Aeronautics and Space Administration

before the
Subcommittee on Government Management, Information and Technology of the
Committee on Government Reform and Oversight

Good moming, Mr. Chairman and Members of the Subcommittee. I would like to thank
you for the opportunity to appear before you today to discuss NASA’s implementation of
the Electronic Freedom of Information Act Amendments (E-FOIA).

The National Aeronautics and Space Administration (NASA) is a civilian agency
dedicated to research and development in space and aeronautics. Unlike the other
members of this panel, NASA is not an enforcement or regulatory agency. NASA is
chartered, through the National Aeronautics and Space Act, to provide for the widest
practicable and appropriate dissemination of information conceming its activities. We
take this obligation seriously. Beyond this obligation, NASA, like all other federal
agencies and departments, is required to provide information to the public under the
Freedom of Information Act unless the information meets one of the statutory exceptions.
The enactment of the E-FOIA is the logical next step to ease public access to government
information.

After the enactment of the E-FOIA, NASA analyzed the E-FOIA mandates. We then met
with the appropriate officials at the Department of Justice, and received their full support
and encouragement to proceed. Listed below is a chronology of major events:

© In April 1997, all NASA FOIA Offices and Offices of Chief Counsel were notified of
the final passage of the E-FOIA.

© In April 1997, we established an Electronic FOIA Reading Room on the NASA
Headquarters (HQ) FOIA Homepage, which had been in existence for over a year.

© In April 1997, a “FOIA Guide for Requesters” was posted on the HQ FOIA
Homepage. NASA created this Guide to be informal and user-friendly.

© In April 1997, the HQ FOIA Homepage was relocated to the entrance level of both
the NASA HQ Homepage (http://www.hq.nasa.gov) and Agency Homepage
(http://www.nasa.gov) to facilitate public access.


41

Furthermore, the shift over to computer based information should not be used as a
pretext for erther closing the document rooms or failing to maintain their ibranies. While
there has been a great increase in the amount of information available over the Internet it
does not include all the docketed information which help to make up the licensing basis
for each of the nuclear power plants in the country.

In conclusion, the Electronic Freedom of Information Amendments of 1996 has
resulted in a substantial increase in the timeliness and amount of information available to
the public and has furthered the goals of the Freedom of Information Act by allowing
citizens to more meaningfully participate in the governmental decisions that effect their
lives.

Thank you for the opportunity to present our views. If you have any questions I'd
be happy to try to answer them.