U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

74–376 PDF 2012

FOIA IN THE 21ST CENTURY: USING TECHNOLOGY 

TO IMPROVE TRANSPARENCY IN GOVERNMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION 

POLICY, INTERGOVERNMENTAL RELATIONS AND 

PROCUREMENT REFORM 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MARCH 21, 2012 

Serial No. 112–140 

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

( 

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

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

DAN BURTON, Indiana 

JOHN L. MICA, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

MICHAEL R. TURNER, Ohio 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

CONNIE MACK, Florida 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

ANN MARIE BUERKLE, New York 

PAUL A. GOSAR, Arizona 

RAU ́ L R. LABRADOR, Idaho 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

JOE WALSH, Illinois 

TREY GOWDY, South Carolina 

DENNIS A. ROSS, Florida 

FRANK C. GUINTA, New Hampshire 

BLAKE FARENTHOLD, Texas 

MIKE KELLY, Pennsylvania 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

EDOLPHUS TOWNS, New York 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

DENNIS J. KUCINICH, Ohio 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MIKE QUIGLEY, Illinois 

DANNY K. DAVIS, Illinois 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

CHRISTOPHER S. MURPHY, Connecticut 

JACKIE SPEIER, California 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

ROBERT BORDEN, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION POLICY, INTERGOVERNMENTAL

RELATIONS AND PROCUREMENT REFORM

JAMES LANKFORD, Oklahoma, Chairman 

MIKE KELLY, Pennsylvania, Vice Chairman 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

RAU ́ L R. LABRADOR, Idaho 

PATRICK MEEHAN, Pennsylvania 

BLAKE FARENTHOLD, Texas 

GERALD E. CONNOLLY, Virginia, Ranking 

Minority Member 

CHRISTOPHER S. MURPHY, Connecticut 

STEPHEN F. LYNCH, Massachusetts 

JACKIE SPEIER, California 

(III) 

C O N T E N T S 

Page 

Hearing held on March 21, 2012 ............................................................................ 1 

WITNESSES 

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

Oral Statement .......................................................................................... 4 

Written Statement .................................................................................... 7 

Ms. Miriam Nisbet, Director, Office of Government Information Services, 

National Archives & Records Administration 

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

Written Statement .................................................................................... 22 

Mr. Andrew Battin, Director, Office of Information Collection, Environmental 

Protection Agency 

Oral Statement .......................................................................................... 28 

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

Mr. Sean Moulton, Director, Federal Infomation Policy, OMB Watch 

Oral Statement .......................................................................................... 43 

Written Statement .................................................................................... 45 

APPENDIX 

Ms. Mary Beth Hutchins, Communications Director, Cause of Action 

Statement for the record ........................................................................... 58 

(1) 

FOIA IN THE 21ST CENTURY: USING TECHNOLOGY TO IMPROVE TRANSPARENCY IN 

GOVERNMENT 

WEDNESDAY, MARCH 21, 2012, 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON TECHNOLOGY, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 3:16 p.m. in room 

2154, Rayburn House Office Building, the Honorable Mike Kelly 

[chairman of the subcommittee], presiding. 

Present: Representatives Kelly, Chaffetz, Walberg, Lankford, 

Meehan, Farenthold, Lynch, Connolly, Murphy and Speier. 

Staff Present: Kurt Bardella, Majority Senior Policy Advisor; Michael R. Bebeau; Molly Boyl, Majority Parliamentarian; Gwen 

D’Luzanksy, Majority Assistant Clerk; Adam P. Fromm, Majority 

Director of Member Services and Committee Operations; Justin 

LoFranco, Majority Director of Digital Strategy; Tegan Millspaw, 

Majority Research Analyst; Mary Pritchau, Majority Professional 

Staff Member; Laura L. Rush, Majority Deputy Chief Clerk; Peter 

Warren, Majority Legislative Policy Director; Jaron Bourke, Minority Director of Administration; Krista Boyd, Minority Deputy Director of Legislation/Counsel; Ashley Etienne, Minority Director of 

Communications; Adam Koshkin, Minority Staff Assistant; Suzanne Owen, Minority Health Policy Advisor; Rory Sheehan, Minority New Media Press Secretary; and Cecelia Thomas, Minority 

Counsel. 

Mr. KELLY. This is a hearing on FOIA in the 21st Century: Using 

Technology to Improve Transparency in Government. 

The hearing will come to order. 

This is the Oversight Committee’s Mission Statement. We exist 

to secure two fundamental principles. First, Americans have a 

right to know that the money Washington takes from them is well 

spent. Second, Americans deserve an efficient, effective government 

that works for them. 

Our duty on the Oversight and Government Reform Committee 

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers because taxpayers have a right 

to know what they get from their government. 

We will work tirelessly in partnership with citizen watchdogs to 

deliver the facts to the American people and bring genuine reform 

to the Federal bureaucracy. This is the mission of the Oversight 

and Government Reform Committee. 

2 

I am going to allow myself an opening statement. 

Today’s hearing is going to address the transparency in government and how advances in technology can be used to improve public access to information. This hearing will focus particularly on the 

Freedom of Information Act, or FOIA, which is the primary tool the 

public has to get information from their government. 

Transparency is extremely important and is necessary in order 

to have a government that is accountable to its people. Holding the 

government accountable and ensuring the public’s right to know 

represents the fundamental mission of this Committee. 

When President Obama took office, one of his first actions was 

to release a new memo on FOIA directing agencies to adopt a presumption of openness and in a statement to the public, the President said ‘‘Transparency and the rule of law will be the touchstone 

of this presidency.’’ I would like to now play a short clip of his comments. 

[Video shown.] 

Mr. KELLY. Those are very strong words. I completely agree with 

President Obama’s statements. However, during last week’s Sunshine in Government Week, many transparency groups expressed 

concern with this Administration’s compliance with FOIA. These 

concerns address a variety of issues including agency stonewalling, 

delays and excessive fees. Recently, the Central Intelligence Agency 

had a class action lawsuit filed against it for illegally discouraging 

requests by imposing significant fees without notifying requestors. 

The Department of Homeland Security has also been accused of 

charging exorbitant fees on FOIA requests. During this Committee’s review of agency FOIA logs, we found one case where the 

agency charged the requestor over $70,000. 

The Department of Justice, which is responsible for setting agency FOIA compliance, has also been accused of defending Federal 

agencies when they choose to withhold documents. Last year when 

asked by the Supreme Court about President Obama’s presumption 

of openness, the Department of Justice lawyer said, ‘‘We do not embrace that principle.’’ 

Clearly, there is more work to be done to ensure that citizens get 

prompt and substantive responses to their requests for government 

information. Technology is valuable tool for promoting transparency and is the focus of our hearing today. 

I look forward to hearing from our witnesses about ways to make 

government more transparent and more accountable to the public. 

Mr. KELLY. I now recognize the distinguished Ranking Member, 

Mr. Connolly, for his opening statement. 

Mr. CONNOLLY. I thank the distinguished Chairman. 

As I said before, my great grandfather Kelly would be proud that 

there was a Kelly sitting in that chair. He would be even prouder 

if there was his great grandson sitting in that chair, but that is a 

different issue. 

We are delighted to have you all here today. I agree with the distinguished Chairman the first part of everything said and I disagree with the second part of everything he said. I actually believe 

there is a record of enormous transparency that is unprecedented 

in the Obama Administration. I actually believe this Committee, 

despite its best efforts, has actually allowed that to be documented. 

3 

Last year, for example, the full Committee held a hearing on 

FOIA and, hyperbole and rhetoric aside, we discussed several FOIA 

advancements since 2009. First, the President issued the Executive 

Order the distinguished Chairman referred, directing agencies to 

err on the side of disclosure rather than secrecy, a reversal, I might 

add, of the Bush era policy, which certainly favored secrecy led by 

the distinguished Vice President, at the time, Dick Cheney. 

Second, agencies reduced the FOIA backlog, this is a fact, by 40 

percent, eliminating 55,000 backlogged FOIA requests, an accomplishment by any measure. At the time, President Obama had only 

been in office two years. Last year, the number of FOIA requests 

increased dramatically and yet, 23 of 37 agencies, more than half, 

still managed to reduce their backlog. Unfortunately, over 250,000 

new requests submitted to the Department of Defense and the Department of Homeland Security increased the government-wide 

FOIA backlog. 

While most agencies improved FOIA management substantially, 

it seems some could still learn from the best practices of others. To 

that end, I appreciate the EPA witness appearing at today’s hearing to discuss its FOIA Module web portal. The EPA’s portal, which 

works with multiple agencies, helps the public submit and track 

FOIA requests, search for information and view agency responses 

to FOIA requests. It allows agency employees to log in securely and 

to process applications. 

From relatively modest, upfront and annual operating costs, this 

portal allows EPA to save approximately $3.5 million over a five 

year period. This sufficient return on investment should encourage 

other agencies to consider adopting similar modules to achieve 

similar savings and efficiencies. 

Similarly, agencies are unlikely to be able to reduce FOIA backlogs or provide quality FOIA responses, a metric that is every bit 

as important as speed of responding if agencies are subjected to arbitrary reductions in the size of their workforce. We cannot have 

it both ways up here, Mr. Chairman. We cannot complain about the 

responsiveness on FOIA requests while we are hacking away at the 

Federal workforce and disparaging Federal employees in the process. We cannot allow antipathy toward the Federal Government to 

impair our ability to respond to citizens’ needs. The Office of Personnel Management projects that retirements will increase some 18 

percent next year alone. In addition to understanding potential 

technology improvements for FOIA, we need to recognize staffing 

needs as well. 

I want to thank the witnesses for appearing today and I look forward to learning especially more about EPA’s module to see how 

we can save money and perhaps help other agencies. 

Thank you, Mr. Chairman, for holding this hearing. 

Mr. KELLY. I thank my Irish colleague. I cannot say what my 

grandfather would have wished. There are more Kelly’s and 

Connolly’s than we can possibly keep track of. 

We are going to recognize right now our first panel: Ms. Melanie 

Ann Pustay, Director, Office of Information Policy, U.S. Department of Justice; Ms. Miriam Nisbet, Director, Office of Government 

Information Services, National Archives & Records Administration; 

4 

and Mr. Andrew Battin, Director, Office of Information Collection, 

Environmental Protection Agency. Thank you all for being here. 

Pursuant to Committee rules, all witnesses must be sworn before 

they testify. Please rise and raise your right hands. 

Do you solemnly swear or affirm that the testimony you are 

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

the truth? 

[Witnesses respond in the affirmative.] 

Mr. KELLY. May the record reflect that all witnesses answered in 

the affirmative. You may be seated. 

In order to allow time for discussion, if you could, please limit 

your testimony to five minutes. We won’t be real strict on that, but 

if you could, that would be great. Your entire written statement 

will be made a part of the record. 

Ms. Pustay, would you please open? 

WITNESS 

STATEMENT OF MELANIE ANN PUSTAY 

Ms. PUSTAY. Good afternoon, Chairman Kelly, Ranking Member 

Connolly, and members of the Subcommittee. 

I am pleased to be here today to discuss agency use of technology 

in administering the Freedom of Information Act and the Department of Justice’s continuing efforts to ensure that President 

Obama’s ‘‘Memo on the FOIA,’’ as well as Attorney General Holder’s ‘‘FOIA Guidelines,’’ are fully implemented. 

The Attorney General issued his new FOIA Guidelines during 

Sunshine Week three years ago and based on our review of Chief 

FOIA Officer reports and agency annual FOIA reports, it is clear 

that agencies are continuing to make significant, tangible progress 

in implementing the guidelines and expanding their use of technology to do so. 

In fiscal year 2011, despite being faced with a noticeable increase 

in the number of incoming requests, agencies were able to process 

over 30,000 more requests than the previous year. The government 

released records in response to 93 percent of requests where 

records were located and processed for disclosure, marking the 

third straight year in which such a high release rate was achieved. 

The government also improved its average processing time for simple requests. 

Agencies continue to meet the demand for public information by 

proactively posting information on their websites. Many agencies 

have also taken steps to make those websites more useful by redesigning them, by adding enhanced search capabilities and by utilizing online portals and dashboards that facilitate access to information. 

For example, the Department of Energy created a full text, 

searchable FOIA portal that provides access to documents previously released under FOIA. Similarly, numerous components of 

the Department of Defense made improvements to their websites 

and created systems for the proactive posting of contracts. 

I am particularly proud to report on the successes achieved by 

the Department of Justice. For the second straight year, DOJ 

maintained a record high 94.5 percent release rate for those reVerDate Aug 31 2005 12:57 Jun 20, 2012 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\DOCS\74376.TXT APRIL
5 

quests where records were processed for disclosure. Perhaps even 

more significant, when the Department released records, it did so 

in full in response to 79 percent of requests. Despite three straight 

years of receiving over 60,000 requests, the Department also increased the number of requests processed and reduced our backlog 

by 26 percent. 

My office carries out the Department’s statutory responsibilities 

to encourage compliance with the FOIA. As part of our work in implementing the Attorney General’s Guidelines and our commitment 

to the initiatives in the National Action Plan for the Open Government Partnership, OIP is leading the effort to maximize the use of 

technology across Federal agencies to streamline the FOIA process 

and to improve the online availability of information. 

Just this past year, OIP reconvened the Interagency FOIA Technology Working Group to exchange ideas on this important topic. 

The group discussed various tools to assist with FOIA processing, 

including technology that can aid in the search and review of documents, shared platforms that allow for simultaneous review and 

comment on documents, and software that automatically identifies 

duplicative material. 

An area that I believe holds great promise in increasing the efficiency of agency FOIA processes is the use of litigation software in 

the FOIA context. Agencies often have to manually review hundreds, if not thousands, of pages of paper and electronic records for 

both responsiveness and duplication before disclosure analysis can 

even be made. 

By utilizing e-discovery tools to perform some of these necessary 

administrative tasks, agency FOIA staff can focus their efforts on 

reviewing records for disclosure and providing a timely response. 

OIP has already begun using this technology and we will continue 

to develop its capability with the goal of helping all agencies employ similar tools for the overall benefit of FOIA administration. 

We are also researching new technologies that will substantially 

improve the FOIA consultation process by allowing multiple components and agencies to review and comment on material simultaneously. 

With well over 1 million visitors since we launched last March, 

the Department’s new government-wide FOIA website, FOIA.gov, 

has revolutionized the way FOIA data is made available to the 

public and has become a valuable resource for both requestors and 

agencies. The website graphically displays the detailed statistics 

contained in annual FOIA reports and allows users to compare 

data between agencies in overtime. The website also serves as an 

educational resource by providing useful information about how the 

FOIA works, where to make requests and what to expect through 

the FOIA process. 

Recently we expanded the function of the site even further by 

adding a new search tool that will help the public locate information that is already available on Federal Government websites. 

This new tool allows the public to enter a search term on any topic 

of interest and FOIA.gov will then search across all government 

websites at once and then capture documents posted anywhere on 

an agency website. 

6 

We launched yet another new feature just a few weeks ago by 

including hyperlinks to the on-line request forms that agencies 

have to make it easier than ever to make a FOIA request. In an 

effort to improve FOIA processes and increase efficiency, there are 

over 100 offices across the government that have already developed 

the capability to receive requests online. 

I am very pleased to report that OIP itself, my office, has just 

launched an online capability. Requestors can now make requests 

and file administrative appeals online. Our portal also allows the 

public to establish their own user accounts and they can track the 

status of their request or appeal at any time and receive their determination from OIP through the portal. 

Looking ahead, we will continue to work on administration of the 

FOIA and to enhance government transparency. We will be looking 

to explore new ways to utilize technology to achieve these goals. 

We look forward to working with the Committee on these important matters. 

Thank you. 

[Prepared statement of Ms. Pustay follows:] 

7 


Insert offset folio 1 here 74376.001
8 


Insert offset folio 2 here 74376.002
9 


Insert offset folio 3 here 74376.003
10 


Insert offset folio 4 here 74376.004
11 


Insert offset folio 5 here 74376.005
12 


Insert offset folio 6 here 74376.006
13 


Insert offset folio 7 here 74376.007
14 


Insert offset folio 8 here 74376.008
15 


Insert offset folio 9 here 74376.009
16 


Insert offset folio 10 here 74376.010
17 


Insert offset folio 11 here 74376.011
18 


Insert offset folio 12 here 74376.012
19 


Insert offset folio 13 here 74376.013
20 

Mr. KELLY. Thank you very much, Ms. Pustay. 

Ms. Nisbet. 

STATEMENT OF MIRIAM NISBET 

Ms. NISBET. Good afternoon, Chairman Kelly and Representative 

Connolly. 

Thank you for the opportunity to appear before you to discuss 

the Freedom of Information Act and information technology. 

I heard from your opening remarks that you both have a sense 

of some of the challenges that face the government, the 15 Cabinet 

level departments and the 84 agencies that administer the FOIA. 

We certainly have seen that. 

As you know, the Open Government Act of 2007, which amended 

the FOIA, created our office to do several things: to review agency 

policies, procedures and compliance with the law; to recommend 

policy changes to Congress and the President to improve the administration of FOIA; and also to resolve disputes between FOIA 

requestors and the Federal agencies. 

We opened our doors two and a half years ago in September 

2009. Our work has reached customers in 48 States, the District 

of Columbia and 13 foreign countries. Individuals, including veterans, researchers, professors, journalists, attorneys and inmates 

comprise more than three-quarters of our workload. Our cases in 

fiscal year 2011 involved 42 Federal agencies including all 15 Cabinet level departments. 

In carrying out our mission, therefore, we do see how agencies 

are using technology every day to administer FOIA, tracking requests, searching for and reviewing records, posting frequently requested records online, and using agency websites to provide information about FOIA resources. 

In 1996, Congress passed the Electronic Freedom of Information 

Act amendments or the e-FOIA to clarify that the law applies to 

electronic records as well as traditional paper records. Sixteen 

years later, agencies are still working to fully implement the eFOIA. Agencies continue to improve and modernize their processes 

but improvements can still be made, as you both have noted. 

Some obstacles that we have noticed are outdated technology and 

challenges posed by the need to properly manage electronic records. 

Certainly my parent agency, the National Archives and Records 

Administration, takes those needs and concerns to heart and works 

on those every day. 

Mr. Battin, from the Environmental Protection Agency, is going 

to give you details of the FOIA Module, a one-stop shop portal for 

FOIA requests. My agency is a partner in that project with EPA 

and the Department of Commerce because we believe it has great 

potential to improve the public access to government information 

and to save taxpayers money by sharing agency resources and 

adapting existing technology. Other departments and agencies have 

expressed interest in the partnership and we hope they will join us. 

The FOIA Module is scheduled to be launched for agencies this 

summer and unveiled to the public in October. 

An area in which FOIA and technology intersect is with 

proactive disclosure of government records. The e-FOIA amendments require every agency’s website to include certain information 

21 

made public under FOIA. Agencies are continuing to make additional information available on their websites in rather staggering 

amounts. 

In order to ease the public’s navigation across agency websites, 

we are encouraging them to standardize FOIA sites to ensure a 

customer friendly and efficient way for the public to find FOIA resources. Last week in observance of Sunshine Week, the national 

initiative to promote open government, OGIS posted on its blog 

some suggestions to improve the FOIA process administratively 

such as top-down support for FOIA, developing with stakeholder 

input, an easy to use template for agencies to customize; standardizing and indexing online FOIA reading rooms; and providing full 

contact information to designated FOIA professionals. 

Finally, OGIS has observed that collaboration across agencies is 

a cost effective and beneficial tool for exploring ways to improve 

the administration of FOIA through existing technology. There are 

several efforts underway in the Federal FOIA community to look 

for ways to collect the information technology requirements of 

FOIA professionals and communicate those to companies that create products for them to use to identify technologies that agencies 

now use that can be repurposed for FOIA; and to share knowledge 

about FOIA issues such as complex database requests and best 

practices to help agencies handle them better. 

We appreciate the Subcommittee’s efforts to examine ways that 

FOIA can work better and more efficiently for everybody, the public 

and the agencies. We thank you for the opportunity to testify. 

[Prepared statement of Ms. Nisbet follows:] 

22 


Insert offset folio 14 here 74376.014
23 


Insert offset folio 15 here 74376.015
24 


Insert offset folio 16 here 74376.016
25 


Insert offset folio 17 here 74376.017
26 


Insert offset folio 18 here 74376.018
27 


Insert offset folio 19 here 74376.019
28 

Mr. KELLY. Thank you, Ms. Nisbet. 

Mr. Battin. 

STATEMENT OF ANDREW BATTIN 

Mr. BATTIN. Good afternoon, Chairman Kelly, Representative 

Connolly and members of the Subcommittee. 

My name is Andrew Battin and I am the Director of the Office 

of Information Collection in the U.S. Environmental Protection 

Agency’s Office of Environmental Information. 

I am pleased to appear before you today to discuss the FOIA 

Module developed in partnership with the Department of Commerce and the National Archives and Records Administration. I am 

also pleased to join my colleagues from NARA and DOJ on this 

panel. 

EPA is committed to the implementation of the Administration’s 

open government and transparency goals. EPA demonstrated this 

commitment by striving for reduction in processing time of FOIA 

requests and recognizing that information technology creates an 

opportunity to improve our FOIA performance. 

EPA has sought continually to be proactive in improving our 

FOIA administration and to be innovative in the use of technology 

to enhance our FOIA performance, both internally and for the public. We made it a priority to deploy a system to help track requests 

and produce EPA’s annual FOIA report. 

Further, the agency believes that efforts made to improve processing and extend public access to FOIA responsive documents are 

very much in keeping with the principles of the Administration’s 

open government directive. In embracing the directive mandate for 

greater transparency, EPA has posted databases from multiple program areas to its website containing information frequently requested under FOIA. 

To build on our strong record of transparency, innovative use of 

available technologies and overall FOIA performance, in June 2010, 

our Deputy Administrator, Bob Perciasepe, launched a cross-EPA 

workgroup to identify ways to improve further still the efficiency 

and consistency of our FOIA processes, to explore the use of tools 

to inform citizens, as well as to update regulations and policies. 

The workgroup report included a recommendation to invest in 

tools and technologies that streamline FOIA operations and increase public access and transparency. As managing partner of regulations.gov, we explored whether the eRulemaking Program’s 

technology infrastructure could be used to accept FOIA requests. 

We procured a third party technical and cost feasibility assessment that concluded that eRulemaking Program’s technology infrastructure could be used to accept FOIA requests, store them in a 

repository for processing by agency staff and allow responsive documents to be uploaded into the system and posted for public access. 

These analyses indicated that leveraging the eRulemaking technology infrastructure could be accomplished with a fairly modest 

investment. EPA shared the analyses with the Federal Government’s two FOIA leads, the Department of Justice and the National Archives Administration, to validate the approach of developing a FOIA module. 

29 

The module would automate FOIA processing and reporting, 

store FOIA requests and responses in an electronic records repository and enable the public to search, access and download previously released FOIA responses for participating agencies. The 

module would also accumulate statistics on FOIA actions throughout the year and summarize this information for an agency’s annual FOIA report. 

Later, other agencies were invited to learn about and explore the 

use of a possible FOIA Module. Through this broader outreach, requirements were developed and refined for how such a FOIA Module could operate. We continued our conversations with our Federal 

partners. Based on the assessment, and a number of agencies expressed interest in the FOIA Module. 

Following finalization of the workgroup’s recommendation for a 

FOIA Module, EPA entered a partnership with NARA and the Department of Commerce. These agencies provided funding to help 

design and develop such a solution. The construction and deployment of the system is estimated to cost $1.3 million. The module 

is scheduled for partner agencies to use later this summer and 

available for public submissions by October 2012. 

As development of the FOIA Module recently reached a sufficient 

state of definition to clarify how its component capabilities are expected to work, managers in both EPA and DOJ recognized that it 

has become timely to harmonize EPA’s efforts on the FOIA module 

with the functions provides by DOJ’s FOIA.gov now and in the future. 

Accordingly, we have begun a series of conversations about each 

organization’s electronic tools to understand in greater detail any 

near term, technical coordination needs and to identify potential future complementary capabilities. We look forward to continuing 

productive, interagency collaboration moving forward on this important work. 

I appreciate the opportunity to provide this testimony and would 

be happy to respond to any questions. 

[Prepared statement of Mr. Battin follows:] 

30 


Insert offset folio 20 here 74376.020
31 


Insert offset folio 21 here 74376.021
32 


Insert offset folio 22 here 74376.022
33 


Insert offset folio 23 here 74376.023
34 


Insert offset folio 24 here 74376.024
35 

Mr. KELLY. Thank you all. You complete written testimony will 

be entered in the permanent record. 

You were all within the five minutes. That was very good and 

usually doesn’t happen here. 

I recognize myself for the first questions. 

Ms. Pustay, DOJ says it is going to develop its own portal. Why 

doesn’t it just choose to work with the EPA on theirs? 

Ms. PUSTAY. We actually just launched our portal, so we are 

done with the portal we have. As I mentioned in my testimony, 

there are 100 agencies that have online request portals, so this has 

been a wave of use of technology across the government. As I mentioned, one of the focuses of the Attorney General’s FOIA guidelines was to encourage agencies to utilize technology, so we have 

had a whole range of options being explored across the government. 

Now, as I said, there are up to over 100 agencies with online request portals. 

As I mentioned, as a new feature for FOIA.gov is we are including on that website hyperlinks to all the online request forms available across the government to make it easy to reach them through 

FOIA.gov. 

Mr. KELLY. DOJ is responsible for setting FOIA policy and compliance across the government, as well as litigating on behalf of all 

FOIA lawsuits. Has there ever been a case where the Department 

of Justice has disagreed with an agency withholding information 

and refused to defend it? 

Ms. PUSTAY. There have definitely been cases where additional 

information was released as a result of application of the Attorney 

General’s Guidelines. We saw that most especially in the immediate wake of issuance of the Guidelines. That has been three years 

ago, so we have been working very hard to train agencies, implement and focus on the new requirements to apply foreseeable harm 

standards, to not withhold information just because you legally 

can, some of the things we saw the President mention in the video 

that you showed a moment ago. 

At this point, we have a nice engrained understanding of the provisions of the Attorney General’s Guidelines across the government. 

Mr. KELLY. Last year, a DOJ lawyer told the Supreme Court that 

‘‘The DOJ does not embrace the principle of openness.’’ Can you explain that disconnect between the President’s memo and the DOJ’s 

actions? 

Ms. PUSTAY. I am happy you asked me that so I could clear that 

up. 

As I understand it, the exchange that occurred during the course 

of the Supreme Court argument was simply not that there was a 

disagreement with the presumption of openness, the actual question being asked of the attorney was whether FOIA exemptions 

should be interpreted narrowly. 

Of course they should be. We have Supreme Court precedence 

that says FOIA exemptions should be interpreted narrowly, but 

there is a corollary principle and that is that FOIA exemptions 

must also be given meaningful reach and application consistent 

with the fact that Congress included in the FOIA exemptions for 

a purpose, to protect vital interests like personal privacy and national security. 

36 

He was attempting to explain that the concept of narrow interpretation of exemptions had to be analyzed in reference to the corollary principle, that exemptions must also be given meaningful 

reach. 

Mr. KELLY. Thank you. 

The purpose of the hearing is to examine ways to use technology 

to improve transparency. What do you think are the most important advances in this area? What are the biggest challenges? Each 

of you has very unique perspectives on this. Mr. Battin, why don’t 

you start? We will give Ms. Pustay a chance to catch her breath. 

Mr. BATTIN. I certainly think the biggest challenge we face, and 

one of the main reasons we went into development of the Module, 

was to improve our efficiencies in being able to meet the public demand. Through the use of the Module, we are internally focusing 

on improving the process to answer FOIAs, bring consistency to the 

process and create a repository for future use. 

For the public, we are increasing transparency, allowing them to 

submit online, track their progress throughout and have access in 

the end. All these are challenges that we face through some of our 

antiquated approaches. 

Mr. KELLY. Ms. Nisbet? 

Ms. NISBET. Representative Kelly, I think that the partnership 

that you heard about and the effort to build a one-stop shop portal 

really gives you an indication of where a lot of people think the future of technology is going to take us with having something that 

is really easy for the public so they don’t have to go to 350 places 

to make a request, to be able to quickly see what information has 

been already disclosed and is publicly available so maybe they don’t 

even have to make a request. 

On the other side is to make easier for agencies to share the resources they have and also to process requests in a more efficient 

way. We have many different systems out there and trying to find 

ways we can actually share with each what we already have with 

each other instead of coming up with so many different solutions 

I think this has some natural cost avoidance built in. 

Mr. KELLY. Thank you. 

Ms. Pustay? 

Ms. PUSTAY. I will mention something we haven’t talked about 

yet so far this afternoon. 

One important thing is as agencies have been working very diligently to proactively post information, to anticipate interest in 

records and put those records, sometimes more than records, put 

databases, put whole websites up dedicated to particular topics, 

they are really working to try to anticipate interest in records and 

get information out to the public before a request is even made. 

There are lots of releases being made by agencies separate and 

apart from FOIA. That is great because that is part of the Attorney 

General’s Guidelines as well. 

One thing we think is important is to have the ability to capture 

all that information. That was one of the reasons we put on 

FOIA.gov the find tab so that if you are a researcher or a student, 

and you’re looking for information on a particular topic, there is a 

way to look across agency websites and capture them. 

37 

Going to the next level, what we are working on now at the Department is metadata tagging. Our plan is to work with GSA to actually have standardized ways to tag records before they are posted, to make the search process for them even that much more precise. We have to be careful as agencies are very enthusiastically 

putting information up on the web. Websites can easily become 

overwhelmed with data. It is very important that there be a way 

to find the information you are looking for. 

Mr. KELLY. Thank you. 

I will now recognize the Ranking Member, Mr. Connolly. 

Mr. CONNOLLY. Thank you, Mr. Chairman, and welcome to our 

panelists. 

I spent 14 years in local government before coming here and in 

the Commonwealth of Virginia, we actually have some of the most 

stringent FOIA laws in the United States. By the way, the FOIA 

laws do not apply to the State Legislature, of course. 

My schedule was subject to FOIA, my phone lines was subject to 

FOIA, my emails were subject to FOIA. I had to deal with FOIA 

requests personally and as chairman on behalf of the county government and sometimes they would be overly broad requests that 

were not very specific. It was very hard to respond to them without 

producing reams of material that presumably the requestor didn’t 

really intend. 

A lot of times if the FOIA came from the press and were overly 

broad to try to make sure they didn’t draw it so narrowly that we 

only juridically answered the exact question they made. They tried 

to often make them overly broad and we would have to negotiate 

with them and say you need to be more specific, otherwise you will 

get the Encyclopedia Britannica printed. 

I have seen the challenges of FOIA. All good attorneys, and certainly our county attorney, always advised agencies and individuals 

in the local government, whatever you do, do not stall, do not 

stonewall, don’t try to create barriers to responding in a timely 

fashion or you can find yourself prosecuted, you can find yourself 

in violation of the law. 

With that introduction, Ms. Pustay, maybe I can start with you, 

presumably there is also similar guidance given to Federal agencies 

in terms of by and large you have to assume it is a legitimate request and be responsive. Would that be fair? 

Ms. PUSTAY. Absolutely. There is a whole range of things that 

agencies do routinely and certainly as part of our outreach and 

training to agencies, my office conducts training throughout the 

year. Every year, we reach thousands of agency employees. There 

are many different techniques actually to use when working with 

requestors. 

The big advantage of open communication with requestors about 

what they are looking for is that if the requestor can be more precise, the information can be provided to them more promptly. Requestors understand that and are always very happy to work with 

agencies. Maybe not always very happy, but usually very happy to 

work with agencies to help focus their request. 

Mr. CONNOLLY. Right. 

Ms. PUSTAY. Also, there is a real push right now across the government to increase efficiency again as part of the AG’s Guidelines 

38 

specifically directed toward looking for more efficient ways to respond to requests. We are seeing that agencies are processing more 

requests. They processed 30,000 more last year, releasing more information. 

There is a bigger picture here where agencies overall are looking 

to be cooperative to implement the FOIA guidelines. 

Mr. CONNOLLY. If I could ask, maybe Ms. Nisbet wants to chime 

in here too, the Chairman alluded to some barrier, some problem 

still going on, the cost of providing material sometimes seemingly 

exorbitant and delays. So, those are two metrics I wonder are we 

measuring that we are bringing down the response time so that we 

are more responsive? Are we also measuring the other impediments that the Chairman rightfully cited such as the cost of providing the material requested so that we are not needlessly creating barriers for people? 

Ms. NISBET. I think trying to deal with those kinds of early speed 

bumps is something I know my office has worked very hard on. As 

you know, part of our mission is resolving disputes between FOIA 

requestors and the agency. We deal with those every day. Fees and 

delays continue to be some of our largest numbers of cases. 

They are still a problem but also we see a corresponding emphasis on customer service, on picking up that phone as quickly as you 

can and talking to the requestor to be able to talk about the scope 

of the request so that you don’t have lots of time spent looking for 

something the requestor is not even interested in. Those are very, 

very fundamental customer service things that we certainly are 

seeing people trying to do a better job of. 

Mr. CONNOLLY. Mr. Chairman, I see my time is up. How does the 

Chair wish to proceed? I do have a few more questions. 

Mr. KELLY. We will do another round. 

Mr. CONNOLLY. All right. I yield to the Chair. 

Mr. KELLY. The Open Government Act changes fee waivers and 

statuses and I know there is some confusion out there. We played 

the President’s remarks and maybe created a Pandora’s Box but 

didn’t mean to. When we start telling people about openness, transparency and everybody will have access to almost everything and 

anything you want and anytime you want it, I understand. 

I am not a lifetime politician. In fact, I have only been here a 

year or so. I understand you can say things that sometimes sound 

good in front of a group and you turn back to the agencies that 

handle them and say, my God, I wish I hadn’t said that, it creates 

a lot of problems for us, but there are a lot of lawsuits, are there 

not? Why do we have so much trouble with the excessive fees? Ms. 

Nisbet, maybe you can weigh in on that. I know the Ranking Member asked something about that but there is some concern out 

there. 

Ms. NISBET. Representative Kelly, there is a lot of confusion both 

amongst requestors and agencies about how the fee categories work 

and the fee waivers. I think this is one of the first things a FOIA 

public liaison officer, a FOIA customer service center can do, is to 

work with the requestors to explain them. 

As I mentioned, my office has a number of cases that revolve 

around fees. That can definitely be a barrier but if you walk 

39 

through what the requirements are both for the fee category you 

are in as well as the fee waivers, it can really help. 

I will give you an example. Last year, we had a requestor come to us concerned because it had gotten a bill for $450,000 to process 

a big database request. Working with the agency, which was very 

cooperative, and the requestor who was seeking to avoid the lawsuit, to resolve those issues pretty quickly and get to the substance 

of the case. 

Mr. KELLY. Ms. Pustay, in your opening statement, you said 93.1 

percent of requests were handled. There is some confusion on that. 

The White House claims 93 percent but they didn’t include cases 

that were no response of record, cases where the request was considered by the agency to be improper, or cases where the requestor 

did not pay fees for records. When all those cases are included, the 

response rate drops down to only a 65 percent rate and a lot of 

those are heavily redacted. 

When we talk about response rate, the American public oftentimes feels we are being gamed, they are being told one thing and 

the actual figures seem to go in a different direction. Maybe you 

could clear up that for us? 

Ms. PUSTAY. Sure. I am happy to and I am glad you asked that 

question. 

We refer to it as a release rate actually. First, in terms of the 

overall numbers, to address your last point, all the detailed statistics about the numbers of requests that are handled by an agency, 

the disposition of the request, to get to your comment about how 

much time it takes, all of that is incredibly detailed information 

and is all required to be prepared very year by every single agency 

as part of their annual FOIA report. All this information is publicly 

available. 

We then take all that information and have it on FOIA.gov now 

where it is easily manipulated, compared and contracted. In terms 

of accountability and transparency about how agencies are doing, 

the annual FOIA reports and FOIA.gov’s graphic representation of 

that data is what should give you confidence that you are seeing 

the statistics however you want them. 

To get to your question about a release rate and how we calculate it, the reason we calculate it by not every single request that 

is processed, we calculate a release rate based on those requests 

where there are records to be processed because it is only for those 

requests that the agency has the decision to make, do I release or 

do I withhold. 

Out of those requests, where an agency is actually looking at the 

record and deciding, do I release or withhold, in 93 percent of those 

requests information is released either in full or in part. 

Mr. KELLY. So the 65 percent we talk about is an actual rate. Is 

that more accurate than the 93 percent? 

Ms. PUSTAY. Respectfully, it doesn’t make sense to calculate a release rate based on the requests where there were no records, for 

example. Where there are no records, the agency never has a 

chance to say I want to release or I am going to withhold because 

there physically are no records in response to that request. To have 

the release rate be meaningful, it is based on those requests where 

there are records. 

40 

Mr. KELLY. When we respond to people, we are setting the parameters saying this is what we could do based on what we did 

have and what we came away with? 

Ms. PUSTAY. Exactly. 

Mr. KELLY. So there is a clarification on that. That is how you 

come up with the 93 percent. 

Ms. PUSTAY. We say the release rate is based on looking at the 

numbers of requests where records were processed for disclosure. 

That is the reason why I say processed for disclosure. 

Mr. KELLY. Okay. That is the key, processed for disclosure? 

Ms. PUSTAY. Yes. 

Mr. KELLY. Not on number of requests? 

Ms. PUSTAY. Exactly. 

Mr. KELLY. Mr. Connolly? 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Ms. Pustay, picking up on something the Chairman was referring 

to, why would we ever redact something in a FOIA response? 

Ms. PUSTAY. Of course, there are nine exemptions that Congress 

put into the statute to provide protection for a range of information. Personal privacy is the most frequently used reason to protect 

information. 

Mr. CONNOLLY. First of all, Congress provided for that? 

Ms. PUSTAY. That is right. 

Mr. CONNOLLY. Secondly, that requires someone to actually go 

over the documents to make sure we are appropriately redacting 

pursuant to these nine exemptions? 

Ms. PUSTAY. Exactly. 

Mr. CONNOLLY. That takes a little time which could add to the 

backlog not because anyone is trying to prevent information from 

getting into public hands but because actually we are trying to protect the innocent and sensitive material? 

Ms. PUSTAY. Of course. 

Mr. CONNOLLY. Let me ask a different question of you, Ms. 

Nisbet, because your office is sort of the ombudsman for the Federal Government. 

Surely there is a difference between a FOIA request at EPA, for 

example, I want to see the studies on lead in water, I want to see 

the empirical evidence that led you to decide to regulate that issue, 

no national secrets there versus a FOIA request that says I want 

to see the Department of Homeland Security’s assessment of strategic assets and the plans to protect them, how many are vulnerable and how many are secure, I would like to see that, please. 

Fair enough? There is a difference? 

We have to manage those two requests even though they are 

both FOIA requests with different levels of sensitivity, awareness 

and scrutiny. Would that be fair? 

Ms. NISBET. That is correct, sir. 

Mr. CONNOLLY. Just using those two examples, in terms of the 

time, resources, backlog, responsiveness, protecting national assets, 

maybe I am a terrorist making that request using the Freedom of 

Information Act because I want to save myself research time, I 

want you to do it. How do we protect ourselves and how do we differentiate in these requests as a Federal Government between one 

and the other? 

41 

Ms. NISBET. That is why you have very dedicated FOIA professionals who work on these kinds of issues every day. 

The processing of requests, as you point out, can be fairly simple 

particularly when there is an easy search in one place and the response is, we don’t have any records, to agencies or departments 

that are quite decentralized and a search would require, for example, with the State Department, not only looking in Washington 

but looking overseas. 

As well and checking for whether or not there were responsive 

records, gathering those records, determining whether there they 

are really responsive, reviewing them and particularly if they deal 

with classified information or with sensitive information whether it 

is financial, personal privacy, whatever the nature of the records, 

or maybe all of those in one document, reviewing them carefully to 

be sure a release to one is a release to all and that a release to 

one person who might be a very legitimate researcher is not going 

to also be turned into something harmful by a requestor who 

doesn’t have a beneficial idea. 

Mr. CONNOLLY. In other words, we have to sometimes exercise 

some prudent judgment? 

Ms. NISBET. Every day. 

Mr. CONNOLLY. When we do that, it is always, in a sense, an arbitrary line. We are drawing a line saying no, we are not going to 

go on that there side. It is a matter of opinion whether that is the 

appropriate line or it should be moved out here or whether there 

should be any at all. Nonetheless, the people making that judgment 

have to make that judgment? 

Ms. NISBET. And they have to make a decision so that the requestor can know what are you going to get, are you going to get 

anything, how many pages or are you not going to get anything, 

and also that they get an answer. 

Mr. CONNOLLY. Right. A lot of our economic competitors in the 

world don’t have FOIA. You can’t go to Beijing and FOIA their 

plans for X, Y, Z, or Tehran or lots of other places. 

Mr. Chairman, would you indulge me just to ask Mr. Battin if 

he could take a little bit of time to talk us through how their portal 

works and why so many people see it as perhaps a model for other 

Federal agencies. By the way, where are you from? 

Mr. BATTIN. I thank you for both questions, Congressman. I am 

from Pennsylvania. I grew up in Pennsylvania. 

In terms of how the Module works, the Module is designed to 

provide a single place for the three participating agencies to allow 

the public to come in and submit a request, to track that request 

in a very open and transparent way so they know within the 20- 

day period that we are looking to respond where in the process 

their request is. 

Also it is designed to give them an opportunity to have a dialogue if there are issues that need to be clarified with the FOIA 

staff and the requestor. There is now a forum to do that. 

Next is providing access to the public to receive those answers 

so they can go to a particular spot, not only look at their request 

and answers to that request but other questions that may have 

been asked. That is kind of the public side of this. 

42 

On the inside internal to the benefits to the agencies, a lot of 

what we are stressing is processing efficiencies, the consistency in 

responses, having that repository for reuse so that we don’t have 

to begin answering questions from the beginning again. Our current solutions don’t have that repository that we can go back to 

and answer a question day forward. That is a huge resource drain 

when we have to recreate the answers time and again. 

Also providing referrals to other agencies as is necessary, within 

the system we have the ability to refer to our partnering agencies 

if there is a question or maybe it should be directed to them and 

providing that ability to enable a repository for searching for other 

agency purposes such as electronic discovery. That is something 

Ms. Pustay mentioned in the beginning. Having that repository of 

electronically discovered information preassembled is very important. 

Mr. CONNOLLY. Thank you. 

Mr. Chairman, thank you for your indulgence. 

Mr. KELLY. Thank you, sir. It is nice working with you. It is 

easy. 

That is going to end the questioning for the first panel. We appreciate your being here today. 

I think we would both agree, I have only been with Mr. Connolly 

for a year, the service you provide our country is very great. Sometimes you have to appear before a committee and it seems maybe 

we are at you for a certain reason, but we do represent the people 

of the United States and we think it is very important that there 

is a clear and transparent approach to everything we do in this 

government. 

Thank you so much for being here today. We appreciate your indulgence. 

We are going to take a short recess and then we will have the 

second panel. 

Mr. CONNOLLY. I thank you for your sentiments, Mr. Chairman. 

[Recess.] 

Mr. KELLY. We will now welcome our second panel. Mr. Sean 

Moulton is the Director of Federal Information Policy at OMB 

Watch. Mr. Moulton, thank you for being here with us today. 

Pursuant to Committee rules, all witnesses must be sworn before 

they testify. Please rise and raise your right hand. 

Do you solemnly swear or affirm that the testimony you are 

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

the truth? 

[Witness responds in the affirmative.] 

Mr. KELLY. May the record reflect that the witness answered in 

the affirmative. 

In order to allow time for discussion, if you could, please stay 

within the five minutes. As you have seen, we are pretty liberal 

with that. I am not usually liberal that way but sometimes I am. 

Being beside Mr. Connolly, I am being a little more liberal today. 

We are going to allow you your opening statement somewhere in 

the five minute range, please. 

43 

STATEMENT OF SEAN MOULTON, DIRECTOR, FEDERAL 

INFORMATION POLICY, OMB WATCH 

Mr. MOULTON. Chairman Kelly, Ranking Member Connolly, 

members of the Subcommittee, thank you for inviting me to testify 

today on the important topic of how technology can improve implementation of the Freedom of Information Act. 

My name is Sean Moulton. I am the Director of Federal Information Policy at OMB Watch, an independent, non-partisan organization that advocates for more open, accountable government. 

Improving citizen access to public information has been an important part of our work for 30 years. We also have experience 

using technology to make government information more available 

to the public online. 

I will begin with a look at the current situation of FOIA implementation. Last week, OMB Watch published our assessment of 

FOIA performance at 25 agencies. Our assessment evaluated processing of FOIA requests, the rates of requests granted and the use 

of exemptions. Across these issues, the news is mixed, with 

progress in some areas as well as a few setbacks. 

In 2011, the Obama Administration increased its FOIA processing and processed the highest number of requests since 2005. 

Unfortunately, the number of requests received increased even 

faster, resulting in a rise in the overall backlog. Although many 

agencies have made progress in reducing their backlogs, continued 

improvement is still needed. 

In terms of granting requests, 2011 added to the Obama Administration’s three-year average of a 95 percent granting request rate 

whether in full or in part. This is higher than the Bush Administration’s average of 93 percent or the last years of the Clinton Administration at 89 percent. However, the Obama Administration 

more often partially granted requests compared to the previous Administrations. 

Finally, on exemptions, the total use of exemptions dropped by 

7 percent. Notably, the use of the most discretionary exemption declined as well in 2011. Use of Exemption 2, internal agency rules, 

decreased by 63 percent. Use of Exemption 5, for interagency 

memoranda, fell by 14 percent. These declines come after steady 

growth in the use of both exemptions during the Bush Administration. 

Turning now to the issue of technology, OMB Watch strongly believes that technology can improve FOIA performance. For several 

years, OMB Watch has advocated for the development of a robust 

electronic FOIA system that incorporates three main improvements: allowing the public to submit and track requests electronically at a centralized site; improved communication through the 

use of email; and to post online in a searchable system documents 

released through FOIA. 

Many of these needed reforms are embodied in the FOIA portal 

project being led by EPA. The project will provide a single interface 

for the public to submit requests to any participating agency and 

would modernize the infrastructure agencies used for processing, 

tracking requests and publishing information. When completed, we 

believe the FOIA portal will help agencies process requests faster 

44 

at a lower cost while expanding online disclosures and improving 

requestors’ experience. 

Mail delays and postage costs would be reduced through online 

communications. The portal would also speed up consultations and 

referrals between agencies. Released documents would be uploaded 

to a public website available both to the requestor as well as to any 

other searchers. Withheld documents would remain in the system 

restricted from public access but quickly available to agency review 

in the event of an appeal. 

Although the project is at an early stage, we believe it merits 

support from Congress. Congress should make it clear that it expects every agency to participate in such a centralized e-FOIA system. Congress can also play a helpful oversight role to ensure that 

such a system maintains high standards of usability for the public. 

In addition to the FOIA portal, OMB Watch recommends other 

key technology reforms to improve FOIA. These suggested reforms 

include: update the electronic FOIA provisions to strengthen the 

standard for publishing released FOIA documents online; expand 

the types of information agencies are required to proactively post 

on their websites; establish a government-wide, online document 

disclosure goal; and update the e-Government Act to better address 

electronic records management and disclosure needs in IT procurement decisions. 

In conclusion, OMB Watch is fully committed to the Committee’s 

goals of using modern technology to improve transparency. With 

the right reforms and investments, FOIA can be quicker, easier to 

use and more proactive in disclosing information to the public. 

I sincerely thank you for the opportunity to address this Committee and I look forward to your questions. 

[Prepared statement of Mr. Moulton follows:] 

45 


Insert offset folio 25 here 74376.025
46 


Insert offset folio 26 here 74376.026
47 


Insert offset folio 27 here 74376.027
48 


Insert offset folio 28 here 74376.028
49 


Insert offset folio 29 here 74376.029
50 


Insert offset folio 30 here 74376.030
51 


Insert offset folio 31 here 74376.031
52 


Insert offset folio 32 here 74376.032
53 


Insert offset folio 33 here 74376.033
54 

Mr. KELLY. Thank you. 

Again, everyone is right on time today within five minutes. 

You made a comment in your opening remarks when you were 

saying the Administration answered it harshly. What does that 

mean? 

Mr. MOULTON. Partial. I am sorry if I didn’t pronounce it properly. Partial disclosures where a requestor would ask for a lot of 

documents or even one document and it might be redacted or some 

of the documents disclosed but not all and an exemption is cited 

to withhold some of that information, so a partial instead of a full 

grant. 

Mr. KELLY. If I remember correctly, in the Clinton Administration, it was 89 percent, is that correct? 

Mr. MOULTON. That is correct. That is a combination of both partial and full grantings. The Obama Administration uses a significantly higher partial granting as a percentage of that. There are 

about 50 percent of the grants they make or requests they answer 

are partially granted rather than full granting. 

Mr. KELLY. When we talk about the information being answered, 

clear that up for me. You are saying that 50 percent are partially 

answered? 

Mr. MOULTON. Right and then full granting would make up the 

remaining 43 percent. That combines to be a 95 percent average 

over the three years. 

Mr. KELLY. Under the Bush Administration, it was 93 percent? 

Mr. MOULTON. It was 93 percent combined. 

Mr. KELLY. You are not running for office. You are allowed to 

make mistakes when you are talking to us. We are not going to 

film that and play it back later on. 

So the Clinton Administration was 89 percent, the Bush Administration was 93 percent and now, under the Obama Administration, it is 95 percent. We have seen a marginal increase of about 

2 percent. I know in 2008, you had some ideas that you submitted 

to President-elect Obama. Has a lot of it been taken in and placed 

into effect? 

Mr. MOULTON. The recommendations we made during the transition had some impact. As Ms. Pustay testified, there have been a 

number of agencies that have been using technology more aggressively in opening up their online forms for requesting information. 

They call them portals. 

The problem really is lack of consistency. Not all the agencies are 

creating the same types of capacity online and some of them aren’t. 

We think the FOIA portal that EPA is developing really offers a 

level of consistency across government that is greatly needed. 

Mr. KELLY. This portal they are opening at the DOJ, is it going 

to be similar to the EPA’s? It sounds to me like the EPA has really 

done a good job with this portal as they come forward. I think you 

were talking about more of a partnership or a sharing. What do 

you see coming with that? Is it looking like it is going to merge? 

Are they going to have something very similar and as easy? 

Mr. MOULTON. Certainly it is hard to say what will come about. 

I would say the features we know are being developed for the EPA 

FOIA portal far outstrip other portals and other efforts that we 

have seen from other agencies. It really is trying to put all of the 

55 

modern advances and improvements that have been developed for 

FOIA in one place. 

The FOIA portal that Ms. Pustay was talking about really was 

a portal to allow you to request information online, but I don’t believe it has the same level of ability, it does have tracking but then 

to post the information to allow electronic communication. 

Mr. KELLY. Mr. Moulton, thank you. 

I am going to now yield to Mr. Connolly. 

Mr. Connolly? 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Just clarify in response to the Chairman’s last question, you are 

referring to the DOJ portal versus the EPA portal? 

Mr. MOULTON. Correct. The DOJ portal is right now mostly just 

request information online. The EPA portal is going to be much 

more robust. 

Mr. CONNOLLY. Right. So, Mr. Chairman, I think you were on to 

something there that would suggest the EPA portal really still 

could be a model even for DOJ. 

Mr. MOULTON. Absolutely. Yes. 

Mr. CONNOLLY. In response to one of the Chairman’s questions, 

correct me if I am wrong, the statistic was something like 93 percent in the Bush Administration and 95 percent in the Obama Administration? 

Mr. MOULTON. That is the average rate of disclosure, yes. 

Mr. CONNOLLY. But what has to be taken into account in response to the Chairman’s query is the difference in volume? Ninety-three percent of half a million is one thing; 95 percent of 1 million is quite something else again. Wouldn’t we have to take into 

account the volume difference too, not just that percentage? It is 

more than a marginal increase if you take into account volume? 

Mr. MOULTON. Compared to the last years of the Bush Administration, the volume is significantly higher. The Bush Administration did handle, in the beginning years when they took over from 

the Clinton Administration, a higher volume they dealt with for 

several years and requests steadily came down. 

Mr. CONNOLLY. I am just saying the percentage may be a little 

misleading depending on the volume we are talking about. That is 

all. 

I want to ask you three questions and I want to try to get them 

in 3 minutes and 29 seconds. 

Uniform criteria, I think that is a good point you were making. 

We have 70 something agencies or 100 different agencies and they 

all have different criteria, sometimes they may have to given the 

nature of the specialized mission, but we ought to have some sort 

of universal criteria so we are all operating from the same playbook. 

Are we making some headway in that regard, do you think? Is 

Ms. Nisbet’s ombudsman role, her agency’s ombudsman role, helping us in that respect? 

Mr. MOULTON. I think we are making progress. We have seen a 

lot of agencies invest in technology, improve their processing, improve their proactive disclosure. It is partly comfort level, comfort 

with technology, comfort with FOIA, that leads some of the agencies to advance further and other agencies sometimes it is also a 

56 

resource question of having the resources to make those investments and improvements. 

Mr. CONNOLLY. Again, we were talking about partial responses. 

That can be, depending on one’s point of view, a good thing or a 

bad thing, a good thing in that at least you are trying to be responsive but you can’t be 100 percent responsive for the exemptions or 

privacy, whatever it may be. 

On the other hand, partial may be no, you are not being responsive. You actually are kind of covering up and impeding transparency. What is your take on this increase in partial responsiveness by this Administration? 

Mr. MOULTON. It is difficult to decide exactly what is going on 

just based on the statistics. The increased use of partial disclosure 

as part of the response from government has been growing for 

many years since about the year 2000, growing steadily, more partial disclosures, fewer percentage-wise full disclosures. 

This could be a change in government information. It may be 

that government information is becoming more commingled with 

privacy information or national security information, so partial 

redactions are a necessity. It could also be a change in requests, 

that people are requesting larger amounts of information and that 

some of it is something that has to be withheld, or it could be, as 

you say, a bad thing. It could be a change in the attitude and the 

implementation by the agency. 

From the statistics, it is impossible to tell. It would really require 

an audit of requests, a random audit to see what was requested, 

what was responsive and what was given to figure out exactly what 

is going on here and driving this. 

Mr. CONNOLLY. That is a good point. For example, maybe there 

was a 1,000 percent increase in the Homeland Security requests. 

Of course that is going to be a partial response if you are lucky. 

My final question quickly is do you see a pattern of more or less 

arbitrary barriers, obstruction, needless delays in the last few 

years or are we improving in that regard? 

Mr. MOULTON. You mean in processing FOIA? 

Mr. CONNOLLY. Yes. 

Mr. MOULTON. I think again the answer is that the record is 

mixed. I think some agencies have made a lot of improvements in 

removing preexisting barriers. I think that is something to also 

stress that some of these barriers have been embedded in the process for years predating this Administration or the previous Administration. 

Mr. CONNOLLY. It is a culture. 

Mr. MOULTON. A culture of if it can be withheld, then it is better 

to play it safe than sorry. That is something that is very hard to 

overcome. There is a lot of training going on, a lot of investment 

at various agencies going on, and I think some agencies have made 

greater strides than others. We have seen some agencies who have 

kept a more business as usual attitude towards processing FOIA 

requests and having the same types of responses. Even when they 

can disclosure more information, they choose not to. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Mr. KELLY. Thank you, Mr. Connolly. 

57 

I would say whenever we talk about all this information that is 

out there, people are a lot more comfortable now. They are becoming more comfortable with technology, getting on and doing a lot 

of things maybe they wouldn’t have done in previous Administrations, but also the world has changed dramatically after 9/11. 

When I think what we put out there, I don’t know another country in the world that allows more people to look at what it is doing. 

I would say our model is probably the most perfect model out there 

but it also does allow for an openness no place else in the world 

does allow and I do think we have to be very careful with it. 

I would agree with Mr. Connolly, I think the world changing so 

quickly, the amount of information that is out there, we do have 

to be very careful with it. The President’s opening remarks, again 

I go back to, sometimes we have to be careful. We open a Pandora’s 

Box. We establish a standard that is may be hard to live up to in 

the real world. As we go forward, I think the public does expect, 

and may be more suspect, of things than they were before. We have 

a lot more people asking a lot more questions at a lot of different 

levels. While some people think that is very healthy, I do think it 

is healthy, but again, there is a lot of responsibility with how you 

handle that material. 

I really do appreciate you being here today. All the panel members, thank you for what you are doing in service to our country. 

With that, the meeting is adjourned. Thank you. 

[Whereupon, at 4:30 p.m., the subcommittee was adjourned.] 

58 


Insert offset folio 34 here 74376.034
59 


Insert offset folio 35 here 74376.035
60 


Insert offset folio 36 here 74376.036
61 


Insert offset folio 37 here 74376.037
62 


Insert offset folio 38 here 74376.038
63 


Insert offset folio 39 here 74376.039
64 

Æ