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IMPLEMENTATION OF THE OFFICE OF

GOVERNMENT INFORMATION SERVICES

HEARING

BEFORE THE

SUBCOMMITTEE ON INFORMATION POLICY,

CENSUS, AND NATIONAL ARCHIVES

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

SEPTEMBER 17, 2008

Serial No. 110–143

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

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

JACKIE SPEIER, California

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND NATIONAL ARCHIVES

WM. LACY CLAY, Missouri, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

JOHN A. YARMUTH, Kentucky

PAUL W. HODES, New Hampshire

MICHAEL R. TURNER, Ohio

CHRIS CANNON, Utah

BILL SALI, Idaho

TONY HAYWOOD, Staff Director

(III)

C O N T E N T S

Page

Hearing held on September 17, 2008 ..................................................................... 1

Statement of:

Weinstein, Allen, Archivist of the United States, National Archives and

Records Administration, accompanied by Adrienne Thomas, Deputy Archivist, National Archives and Records Administration; Thomas

Blanton, Director, National Security Archive at George Washington

University; Patrice McDermott, Openthegovernment.org; Rick Blum,

coordinator, Sunshine in Government Initiative; and Terry Mutchler,

executive director, Pennsylvania’s Office of Open Records ....................... 7

Blanton, Thomas ....................................................................................... 18

Blum, Rick ................................................................................................. 39

McDermott, Patrice ................................................................................... 30

Mutchler, Terry ......................................................................................... 50

Weinstein, Allen ........................................................................................ 7

Letters, statements, etc., submitted for the record by:

Blanton, Thomas, Director, National Security Archive at George Washington University, prepared statement of ................................................... 21

Blum, Rick, coordinator, Sunshine in Government Initiative, prepared

statement of ................................................................................................... 41

Clay, Hon. Wm. Lacy Clay, a Representative in Congress from the State

of Missouri, prepared statement of .............................................................. 3

McDermott, Patrice, Openthegovernment.org, prepared statement of ........ 32

Mutchler, Terry, executive director, Pennsylvania’s Office of Open

Records, prepared statement of ................................................................... 53

Weinstein, Allen, Archivist of the United States, National Archives and

Records Administration, prepared statement of ......................................... 9

(1)

IMPLEMENTATION OF THE OFFICE OF

GOVERNMENT INFORMATION SERVICES

WEDNESDAY, SEPTEMBER 17, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND

NATIONAL ARCHIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m. in room

2154, Rayburn House Office Building, Hon. Wm. Lacy Clay (chairman of the subcommittee) presiding.

Present: Representatives Clay and Yarmuth.

Staff present: Darryl Piggee, staff director/counsel; Jean Gosa,

clerk; Alissa Bonner and Michelle Mitchell, professional staff members; Charisma Williams, staff assistant; Leneal Scott, information

officer; and Charles Phillips, minority senior counsel.

Mr. CLAY. The Information Policy, Census, and National Archives Subcommittee of the Oversight and Government Reform

Committee will come to order.

Yes, we are experiencing some technical difficulty with the sound

system, and we will try to fight through it.

Without objection, the chair and ranking minority member will

have 5 minutes to make opening statements, followed by opening

statements not to exceed 3 minutes by any other Member who

seeks recognition.

Without objection, Members and witnesses may have 5 legislative days in which to revise and extend their remarks.

Let me start with the opening statement.

Today the committee will examine the structure and function of

the Office of Government Information Services [OGIS], established

by the Open Government Act of 2007. Congress passed the Open

Government Act to help citizens obtain timely responses to FOIA

requests. OGIS is charged with reviewing FOIA policies and procedures of administrative agencies to make sure they are in compliance with the law.

Congress placed OGIS within the National Archives and Records

Administration to serve as an impartial mediator to resolve disputes between FOIA requestors and administrative agencies. Prior

to the act, when an agency failed to provide information requested

under FOIA, a requester was forced to sue an agency to get the information. For average citizens who comply, a significant percentage of the FOIA requestor community, the cost of litigation is prohibitive.

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It has been 9 months since the President signed the Open Government Act into law, but there has been no movement on establishing OGIS. Congress has appropriated $1 million to fund the

planning for OGIS; however, the funds will not likely be available

until 2009.

Members are concerned that delays in structuring the office will

increase the backlog on FOIA requests and undermine the purpose

of establishing OGIS.

Today’s hearing will provide the U.S. Archivist with an opportunity to share his strategic plan to implement the law and establish OGIS. We will also hear from the open government community

about how to structure a highly functional office that will make

FOIA work more effectively.

I thank all of our witnesses for appearing today and look forward

to their testimony.

[The prepared statement of Hon. Wm. Lacy Clay follows:]

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Mr. CLAY. I now yield to my friend from Kentucky, Mr. Yarmuth.

You may have up to 5 minutes.

Mr. YARMUTH. Thank you, Mr. Chairman. And thank you for

holding this hearing. I want to thank all the witnesses for appearing today.

I have two very personal reasons for my interest in this hearing.

One is, as someone who spent most of the last 25 years before entering Congress in journalism, I understand how critical FOIA is

to the functioning of a free society and free democracy, so I am very

concerned that what we do here in Congress to make sure that

FOIA functions effectively in the Federal Government is very important to me.

Second, this is Constitution Day, 221st anniversary of the Constitution. I wear Article 1 buttons to show my respect for not just

the Constitution but specifically for the establishment of the Congress and the idea, as expressed in the Constitution, that the people decide the law of the land through their representatives in Congress. The Founding Fathers vested all legislative authority in

Congress, and it seems to me that what we have seen here is possibly another example in which Congress’ authority is being undermined by the executive branch, not being respected by the executive branch, that the checks and balances that the Founding Fathers contemplated are not being respected throughout Government, and therefore I look forward to the testimony and exploring

these questions so that the American people understand what is at

stake when Government doesn’t function as the Constitution anticipated it would.

So thank you, again, Mr. Chairman, for holding this hearing. I

look forward to the testimony.

Mr. CLAY. Thank you, Mr. Yarmuth.

We will now take testimony from the witnesses. We are fortunate

to have several FOIA experts to offer their insight on what OGIS

should look like and how it can best achieve its mission.

We welcome the Honorable Allen Weinstein, Archivist of the National Archives and Records Administration. He is accompanied by

Deputy Archivist Adrienne Thomas. Welcome to you both.

We also have with us Thomas Blanton, director of the National

Security Archive at the George Washington University. And Patrice

McDermott, Director of openthegovernment.org, and Rick Blum, coordinator for Sunshine in Government Initiative, as well as Terry

Mutchler, executive director of Pennsylvania’s Office of Open

Records.

Let me thank all of you for appearing today before the committee.

It is the policy of this subcommittee to swear in all witnesses before they testify. Would you all please stand and raise your right

hands.

[Witnesses sworn.]

Mr. CLAY. Let the record reflect that the witnesses answered in

the affirmative.

I would ask that each witness now give a brief summary of their

testimony. Please limit your summary to 5 minutes. Your complete

written statement will be included in the hearing record.

Mr. Weinstein, we will begin with you.

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STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE

UNITED STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ACCOMPANIED BY ADRIENNE THOMAS, DEPUTY ARCHIVIST, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; THOMAS BLANTON, DIRECTOR, NATIONAL

SECURITY ARCHIVE AT GEORGE WASHINGTON UNIVERSITY;

PATRICE McDERMOTT, OPENTHEGOVERNMENT.ORG; RICK

BLUM, COORDINATOR, SUNSHINE IN GOVERNMENT INITIATIVE; AND TERRY MUTCHLER, EXECUTIVE DIRECTOR, PENNSYLVANIA’S OFFICE OF OPEN RECORDS

STATEMENT OF ALLEN WEINSTEIN

Mr. WEINSTEIN. Good afternoon, Chairman Clay. I am Allen

Weinstein, Archivist of the United States. I am accompanied by

Deputy Archivist Adrienne Thomas.

In preparing the testimony which I am about to deliver to this

congressional committee, I treated with utmost seriousness my own

obligations as a member of this administration to subordinate any

personal views on the matter at hand, to stick to the facts, and to

recognize the deep concerns felt by this administration regarding

the matters at hand.

As you know, in the fiscal year 2009 budget submission to Congress, the administration requested that Congress transfer responsibilities for the Office of Government Information Services [OGIS],

from the National Archives to the Justice Department, the administration’s lead agency on FOIA issues. Both House and Senate Appropriations Subcommittees have indicated their disagreement

with locating OGIS in the Justice Department. We should keep in

mind the final fiscal year 2009 Appropriations Act resolving the

issue has not yet become law and the issue remains unsettled.

The Archives’ position on the matter can be stated simply we

have not sought ownership of the tasks involved. Indeed, we are

not far from Lincoln’s famous comment, Mr. Chairman, of the gentleman being run out of office on a rail who told an onlooker, ‘‘Were

it not for the honor of the thing, he would just as well have

walked.’’

Can we do the job if assigned it? There is little question that we

can. Should we do so remains a more complicated manner and,

candidly, without adequate funding, a downright impossible one.

Make no mistake: should NARA be funded by Congress for the

OGIS and that agreement signed into budgetary law by the President, we will respond to the challenge and the intent of both Congress and the administration in shaping an Office of Government

Information Services devoted to maintaining the dialog and working closely with the Justice Department, as well as with every

agency of the Government to improve public access to Government

information. I cannot imagine that the President and Vice President, agency heads, and bipartisan commission leaders would expect any less of us.

The world of Freedom of Information requests is a complex one.

I know from personal experience on both sides of the fence, Mr.

Chairman. I was one of the first Americans to file with success a

Freedom of Information Act lawsuit following passage of the 1974

amendments, and today I oversee an agency that receives over 1

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million requests a year from the public for information. Not all are

Freedom of Information requests, but they often require that the

public’s right to information be balanced with the need to protect

certain kinds of information.

The Freedom of Information Act recognizes this balancing act by

providing nine exemptions for withholding information. It is a testament to the quality of that legislation that these exemptions still

serve us well today. In the intervening years since the passage of

the Freedom of Information Act, both the public awareness of this

right of access and the bureaucracy necessary to service that right

have grown significantly. Many of the issues addressed by your bill,

Mr. Chairman, and by public law 110–175 are a direct result of

that growth.

My pledge to you, Mr. Chairman and members of the committee,

is that if called upon I will set up the Office of Government Information Services as a fair and independent voice in the continuing

push and pull between maximum public access, on the one hand,

and the necessity on the other to withhold information under the

FOIA exemptions.

I thank the committee for listening to this brief statement, and

I will try to respond to any questions you might have.

[The prepared statement of Mr. Weinstein follows:]

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Mr. CLAY. Thank you so much, Mr. Weinstein.

Mr. Blanton, we will proceed with you.

STATEMENT OF THOMAS BLANTON

Mr. BLANTON. Thank you, Mr. Chairman, Congressman

Yarmuth.

This hearing is an essential part of the process. There is nothing

like a hearing to clarify the mind or get the executive branch to

give us some answers. Frankly, I was shocked to see the written

testimony that came to this subcommittee just yesterday because

that is not what we have been hearing and it is completely unrealistic as an approach to setting up a successful Office of Government

Information Services. To shuck and jive and run still from the task,

which is what the administration is doing, by still saying this belongs at the Justice Department is just wrong. The fate of a statute, the intent of Congress, the unanimous opinion of the requester

community, and the unanimous approval of the Congress actually

hangs in the balance here.

I can tell you this function does not belong at the Department

of Justice. There is an inherent conflict of interest there that was

recognized by the requester community and by this committee and

by this Congress that said no. Those are the folks that defend

agencies against requesters. They can’t mediate. And in fact, they

don’t mediate. Contrary to the prepared testimony presented by the

Government, the Office of Information Policy at the Justice Department does not mediate. Just last year we approached them and

said CIA is breaking the law on fees on the Freedom of Information

Act and we are going to have to go to court unless you step in and

tell them. Justice Department said, well, we think you are right.

They are breaking the law. There is established case law. But no,

we can’t really step in. We had to go to court.

The CIA has just sent an apology letter to our General Counsel

saying, we were wrong. Sorry about that. We take it back. But

meanwhile hundreds of hours of our time, our pro bono lawyers’

time, and taxpayers’ time was taken up by a dispute that should

never have gone so far. The Office of Information Policy is not

doing this job, won’t do this job, can’t do this job, and shouldn’t do

this job. That is why this legislation, this statute, set up the Office

of Government Information Services precisely at an independent

agency, respected agency.

I must say that, on behalf of most of the requester community,

we were hoping that agency would run out and embrace it and take

it and take that vote of confidence and go do great things with it,

because that is what I really hoped to see during this hearing

today, Mr. Chairman, was a discussion of some of the practical

steps that we all need to participate in, the stakeholders, the Congress, the National Archives, and the rest of the executive branch,

frankly, to make this new function work.

The United States is falling behind. It used to be a leader on the

Freedom of Information Act. Now the backlogs are mounting. Now

the restrictions are mounting. The secrecy stamps are flying at

record pace. Around the world, other countries are doing this kind

of function—mediation function, ombudsman function—very successfully. There are great lessons also at the State level. We are

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going to hear one of those later in the prepared testimony here.

There are lessons we should take from all those to make this work.

There are a bunch of practical steps that we need to focus on.

I think you will see in the statements a lot of consensus among

the stakeholders on the need for leadership, the need for a commitment to open Government, the fact that the decision about who is

going to be the director of this office is maybe the most important

single one, and we had better get ready for that because that person and that person’s commitment to open government is what is

going to make this work.

There is consensus, I think, among your witnesses here about the

necessity for transparency in the office’s functions, the way in

which the Web and the Internet can help build a body of advice

and opinion and guidance that is good for agencies, good for the efficiency of Government, and good for requesters to figure out how

to make their own requests better and bring less of a burden on

the agencies.

I think there is consensus about the necessity to get started now.

I do hope that after this hearing the National Archives will continue the process that it has started. I must give the credit to you,

Mr. Chairman, and to this subcommittee for setting a date for a

hearing, because that tends to drive some dialog that might not

otherwise take place. I hope to see that dialog continue, because we

all have to be ready. This is going to be a mandate. There will be

an office in March 2009. National Archives is going to have to carry

it out, we need to have a job description already written. We need

to have some ideas about the guidance and the regulations that office is going to put out. We need to have some very practical steps

that you are going to hear from Pennsylvania and Illinois’ experience about what that office can do to make things work.

We need to be ready to go, because already just the realities,

having a director in place some time the spring of 2009, staffing

up the other five or six people that budget will support maybe by

the end of the summer, some guidance and regulations by the end

of the year. We are talking 2 years after Congress put this function

into law before we are going to see real benefit to the public, to the

requester.

Finally, I just want to say my No. 1 recommendation for making

this office work is that if it becomes just a complaint bureau it will

fail. The experience in Great Britain when they established an Information Commission, it would be this kind of appeal and mediation office, he set up essentially a first in/first out complaint line.

Right now he has a 2,000 case backlog because it just built up.

The only way, when you are talking about 21.8 million Freedom

of Information requests every year to the Government, when you

are talking about a minimum of 8,000 administrative appeals into

the Federal Government, you are talking about a potential caseload

level that could overwhelm this office. It has to be proactive. It has

to take preventive measures. It has to use the Government Accountability Office provision that is in the law, do those audits of

agencies, find the problem agencies, define them, figure out how to

fix them, use those other resources.

Then once you have an idea of how to fix it, and that is what

OGIS should produce, use the Freedom of Information Act public

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liaison officers who were originally in President Bush’s Executive

order, adopted into statute, have statutory role in assisting in mediating disputes. Those folks should be your front-line people for

the office to empower. Every one of those people should have a job

description that says you are going to carry out the advisory opinions of the office. That is what is going to make it work.

I really thank you for your attention to this, Mr. Chairman, because without that attention I don’t even think we would have the

progress that we do have to date.

[The prepared statement of Mr. Blanton follows:]

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Mr. CLAY. Thank you so much, Professor Blanton.

We will go to Ms. McDermott. You may proceed.

STATEMENT OF PATRICE McDERMOTT

Ms. MCDERMOTT. That is a hard act to follow.

Thank you, Mr. Chairman and Congressman Yarmuth, for the

opportunity to speak today on the implementation of the new Office

of Government Information Services created by the Open Government Act.

I am speaking today on behalf of a coalition of more than 70 organizations—of which National Security Archive is one—that believe that a transparent and open Government is essential to holding Government accountable and earning the trust of the American

public. Members of the coalition worked very hard to ensure the

passage of the Open Government Act, and the new OGIS was considered a key component of that legislation. We are pleased that

you are conducting this hearing and appropriate the opportunity to

share our thoughts.

First let me concur with Mr. Blanton’s statement. I absolutely

agree with everything in it.

I am focusing my comments today on the responsibility of OGIS

to review agencies’ FOIA policies and procedures, their compliance

with the act, and to recommend policy changes to Congress and the

President. Ensuring compliance with FOIA has not until now been

any entity’s clear responsibility or focus, with well-documented results or lack thereof.

The 1974 amendments to the FOIA require the Attorney General

to include in its annual report a discussion of the efforts undertaken by department to encourage agency compliance with FOIA.

The Department’s report generally identifies guidance and training. It has adjured any responsibility for ensuring compliance because it says it does not have responsibility for doing so.

On December 14, 2005, the President issued an Executive order

on citizen-centered and results-oriented FOIA administration, but

other than reporting back annually for a couple of years there was

no real accountability built into the order, nor was there any meaningful oversight of the agency’s plans or the implementation thereof. Indeed, the 2007 report to the President obscured the overall

failure of the agencies to accomplish much of significance. The Department only describes progress at 25 out of 90 agencies that prepared improvement plans saying that they had made meaningful

progress, but his graphics showed that only 11 of those 25 agencies

met all their self-generated milestones, and that 3 agencies did not

meet a single target, that nothing has happened.

The current situation then is lack of enforcement mechanisms,

lack of accountability, and lack of compliance with many aspects of

the law. No entity has had clear responsibility for ensuring compliance, and none does so.

Section 11 in the Open Government Act gives OGIS the responsibility for reviewing FOIA policies and procedures and the compliance of administrative agencies in recommending policy changes.

The same Section 11 gives the agency chief FOIA officers responsibility to monitor FOIA implementation throughout the agency

and keep the head of the agency, its legal officer, and the Attorney

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General informed of the agency’s performance, and to recommend

to the head of the agency such adjustments necessary to improve

the implementation of FOIA. Thus, we have two distinct and separate avenues for review and compliance for FOIA and making recommendations: the OGIS responsibilities and the chief FOIA officer’s reporting to agency leadership and to the Attorney General.

There may be a simple fix for this, perhaps by requiring the reports to be publicly available as they are issued, perhaps by setting

up a CFO office headed by the Archivist and chaired by the head

of OGIS. But as it stands now, there is no required communication

with OGIS from the chief FOIA officers about their findings and

recommendations.

Because of this, it is clear, as others have indicated and will indicate, the head of OGIS must be at a senior level to be at a comparable level with the chief FOIA officers, and he or she should report directly to the Archivist.

The statute also gives the Government Accountability Office, as

Mr. Blanton noted, ongoing responsibility to conduct audits of administrative agencies on the implementation of the FOIA and to

issue reports detailing the results. We think that, given the at least

initial staffing of OGIS, it is appropriate for GAO to perform these

audits in lieu of OGIS doing so, and we presume these reports will

be used by OGIS in fulfilling its responsibilities.

Simply receiving reports is not sufficient, however. Ensuring

compliance will take more resources than OGIS has allocated to it

at present.

We also believe that it is essential that there be a robust and

transparent mechanism for public input on agency compliance and

needed changes. It is not enough to look at agency reports and talk

with agency personnel, nor should the focus of such public input be

limited to the items in the annual reports that agencies are required to complete and the recommendations of the chief FOIA officers. Given the limited resources of this new office, some hard decisions are going to have to be made about the use of staff and funding.

The public access community believes strongly in both ensuring

compliance and in the mediation services and advisory opinions,

obligations of OGIS. The balancing of resources required of the office argue strongly for funding adequate to both of its missions and

for meaningful support within the National Archives. It will also

require the ongoing oversight of Congress.

Thank you for this opportunity. I will be pleased to answer any

questions.

[The prepared statement of Ms. McDermott follows:]

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Mr. CLAY. Thank you, Ms. McDermott.

And now we will hear from Mr. Blum. Thank you for being here.

STATEMENT OF RICK BLUM

Mr. BLUM. Thank you, Mr. Chairman and Congressman

Yarmuth. I am Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of nine major media associations formed

in 2005 to promote open Government policies and practices.

Our coalition strongly supported the creation of the Office of Government Information Services within the National Archives when

Congress enacted the Open Government Act. Earlier this year, we

first issued recommendations for ramping up OGIS this spring.

These are attached to my written testimony.

Mr. Chairman, we commend you, Chairman Waxman, and the

committee for spearheading passage of FOIA reforms. We also applaud you for having this oversight hearing on implementing OGIS

specifically. Congressional oversight of this provision is critical to

ensure that OGIS is implemented in the way that Congress intended and in the way that will make FOIA work better for average citizens.

Let me remind you that, despite its problems, FOIA is a key tool

to citizens to hold Government accountable; yet, the media and citizens often run into roadblocks with Government agencies where

there is no recourse except an expensive lawsuit. OGIS will provide

a new, much needed alternative to resolve FOIA disputes.

Let me give you an example of how this office can help. Mark

Schleifstein, a reporter for the Times Picayune in New Orleans,

covered Hurricane Katrina as it came ashore. In the first few days

after landfall, his readers wanted to know about specific neighborhoods and whether they were contaminated with chemicals. Mark

checked logs of chemical spill reports maintained by the Environmental Protection Agency. He knew enough to know he wasn’t seeing a complete picture, so he filed a FOIA request. Months later,

EPA responded to Mark by referring him to the same logs Mark

had examined in preparing his FOIA request, so he quickly appealed the apparent denial.

An OGIS mediator could have stepped in to get a more satisfying

response from the agency, yet, more than 3 years have passed since

Mark filed his request, and Mark still doesn’t have answers. But

he does have a Pulitzer Prize.

Many States already have an ombudsman office to help make

their laws work better. We appreciate Congress creating this at the

Federal level.

Let me note and again reiterate that Congress specifically placed

the ombudsman in the Archives. It chose the Archives to ensure

independence and to separate it from the Government lawyer who

defends agencies in FOIA lawsuits. We also applaud appropriators

in both the House and Senate who rejected the administration’s efforts to transfer OGIS to the Justice Department and provided $1

million in fiscal year 2009 specifically for the Archives to get OGIS

started.

Congress recognized that shifting these ombudsman functions to

the Justice Department would create an inherent conflict of interest.

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We have three recommendations for implementing this office.

First, OGIS should be a high-level office reporting directly to the

Archivist. One strong model already within the Archives is the Information Security Oversight Office, which works well managing

the classification system. The OGIS should be in a position within

the Senior Executive Service and report directly, as I said, to the

Archivist. OGIS should be independent of the Archive’s own agency

FOIA operations and, therefore, should exist separate from the

General Counsel’s office.

Second, leaders of this ombudsman’s office should have the right

mix of management, legal, and mediation experience to imbue this

office with the stature, independence, and reputation for fairness it

needs. The OGIS director should have mediation experience, especially in a Federal environment. The OGIS leaders will require

some legal training, but the director need not be a lawyer. OGIS

leaders will have to balance these technical skills with a mission

to primarily respond to and help the public.

Third, the office should ramp up its mediation services as soon

as possible. This office should quickly establish criteria for selecting

cases to mediate so it maximizes its impact yet it is not overwhelmed. This is critically important. The office should bring its

mediation services to main street by using the Internet to mediate

disputes and by posting written advisory opinions online. These

moves cut costs, improve agency responses through better guidance, resolve disputes faster, and could help make FOIA work better. Models exist, and OGIS should build on them.

In conclusion, this office will require support from Congress

through dedicated resources and active oversight and from the public and those in the open government community, including our

own media coalition, to help ensure that this office’s important mission of making FOIA work more effectively is achieved.

Mr. Chairman, thank you for the opportunity to testify. I look

forward to answering any of the committee’s questions.

[The prepared statement of Mr. Blum follows:]

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Mr. CLAY. Thank you so much, Mr. Blum.

Ms. Mutchler, you will bat cleanup.

STATEMENT OF TERRY MUTCHLER

Ms. MUTCHLER. Well, Mr. Chairman, thank you for the opportunity to come and talk to you today about open government here.

Congressman Yarmuth, thank you as well for listening to this very

critical testimony. I also echo each and every thing that was said

here today, but I would be remiss if I just didn’t tell you how much

fun I am having, too. I just wanted to tell you that.

My name is Terry Mutchler. I am the executive director of the

Office of Open Records in Pennsylvania. That office is very similar

to what the law outlines in creating OGIS, and the reason I am

here to talk to you today about this is because I have dealt directly

with the Freedom of Information Act from a lot of different angles:

as a journalist for the Associated Press in Pennsylvania, Illinois,

New Jersey, and Alaska; as an attorney practicing media law in

Chicago; and also as an ombudsman in both the State of Illinois

and now in Pennsylvania to actually create and mediate issues related to the Freedom of Information Act.

I think we would all agree that secrecy is toxic to good government. The only way in which you can have open and honest government is a free flow of information exchange between citizens

and their government, and the tool that we have that makes that

happen is the Freedom of Information Act.

The point of my being here today is to just try to offer you some

examples of a blueprint, if you will, of what worked for me and

what didn’t work in both the State of Illinois and in Pennsylvania.

When we started this in the State of Illinois it was called a Public Access Counselor, and it was an ombudsman role, and we didn’t

have a model to draw on, and so what we simply did was look at

what the problems were with the Freedom of Information Act and

what some basic solutions could be.

What I discovered quickly in Illinois, and I am starting to quickly

discover in Pennsylvania, is that there are two extremes that exist

when you deal with the Freedom of Information Act, and there are,

to be very blunt with you, there are crazy people on both sides of

the open government equation, and I have met each and every one

of them.

On one hand you have some citizens and members of the media

who are convinced that each and every public official is a criminal

and the one document they are not getting is Watergate. They

know this. But on the flip side you have public officials who treat

this information as though it is coming from their own personal

checkbook. Right now under FOIA until OGIS there was no place

for a citizen to go to get help.

When the Attorney General created this Public Access Office in

Illinois she was criticized as pandering to the press. It was a pressdriven issue is what people were told. However, the key was in the

3,000 cases that I handled in Illinois, 85 percent of them were from

citizens. The next largest group of people that came to us for help

in mediation were public officials. Media brought up the last angle

of that.

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We had great success in Illinois. For people that think that open

government is just a philosophy, let me just give you a few brief

examples that will demonstrate to you why it is critical that OGIS

be established in a way that can be effective to enforce the Freedom of Information Act.

A reporter filed a Freedom of Information Act request for the city

of Chicago. What that reporter wanted from the school district in

Chicago was a list that they knew existed of criminals who were

still teaching in the Chicago public school system, people who were

drug dealers, sex offenders, and folks who had been convicted of attempted murder.

Do you know what the school district said? To release that would

be an unwarranted invasion of personal privacy of the criminals.

So the Office of the Attorney General became involved, and we mediated the result of having those documents released. When the

Governor and the State of Illinois was subpoenaed and is under

Federal investigation, those subpoenas were available under the

Freedom of Information Act. There was no legal basis with which

to hold those. The Office of the Attorney General became involved

and we mediated and actually advised that those be released. The

Governor’s office disagreed, of course, and we went to court, and

the open government angle of this won and the subpoenas had to

be released.

But time and time again we are not talking about esoteric documents. We are talking about school district budgets. We are talking

about police reports. We are talking about 9/11 dispatch logs that

demonstrate how long it takes for police to respond into certain

communities. This is basic information that is being sought.

I can tell you that what happens with the Freedom of Information Act is delay, denial, and dodging. I have had public officials

tell me directly and personally that they use the Freedom of Information Act as a way to block information. That is their goal. That

is why my recommendation to this committee and to the National

Archives in setting up this OGIS system is going to be in three angles.

You have to have a director that is independent. If you do not

have a director that is independent, you might as well go take the

million bucks and go do something fun, because it is not going to

work. That director has to be someone that is committed to the

mission of open government. I would encourage whoever hires this

director to not be afraid to hire someone with a media background

or an attorney that has dealt with this, someone that will push the

open government mission.

The next thing that you have to have is a mission, and the mission should be to err on the side of open government with this.

And the third component is the structure. As I said to someone

earlier before this testimony, you are going to be inundated with

complaints. You are going to be inundated with mediation cases.

The only way that you are going to be able to have this work is

to establish a structure that works, and that structure should be

one that sets up in advance the intake process, that has a data

base to be able to track these so that you are able to get a picture

after the first year of statistics to see where the problem agencies

are.

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To have that person, as someone else said here earlier, be at a

senior level, and I would also tell you that putting this in the Department of Justice would be a grave error, not because of this particular administration or any administration that we may see, but

you are going to have inherent conflicts of interest. You are going

to have conflicts of interest that cannot work.

One of the problems that we faced in Illinois being housed in the

Office of the Attorney General, the Office of the Attorney General

represented many State agencies, and we quickly came to assess

that we were basically giving advice to our clients out of both sides

of our mouth. It was kind of an uncomfortable position for me as

an attorney, but we managed to get through it.

You need someone with the reputation of the National Archives,

someone with that independence, and that is why this should be

driven, because the reality—and my experience leads me to say

this—is that the Freedom of Information Act comes down to a philosophy. You are either pro open government or you are not. This

law, as with any other law, can be used like statistics. You can use

it to either shed light and to improve Government or you can use

it to shield and block information, which is what we see repeatedly—at least I have seen repeatedly in Illinois and Pennsylvania.

I would encourage the committee to also look at the paradigm set

up in Connecticut. The Freedom of Information Act Commission

there has been around for 30 years. I would put them as the leader

in the Nation, followed by Florida and Texas, hopefully soon to be

Pennsylvania but we need a little work on that.

I would also be happy to answer any questions that you have, because I genuinely believe that this Government is not my Government and it is not yours, it is not the administration’s, it belongs

to the people sitting behind us.

[The prepared statement of Ms. Mutchler follows:]

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Mr. CLAY. Thank you so much, Ms. Mutchler, for your expertise

in this field and your testimony.

I thank all of the witnesses for their testimony.

Now we will begin the questioning period. I will start with Dr.

Weinstein.

The Doctrine of Sunshine in Government Initiative suggested

that OGIS be led by a senior executive that would report directly

to you and that the OGIS staff is experienced in mediation to avoid

the need to resolve disputes with litigation. As a user of the system

and now a manager of the system, what are your thoughts about

these recommendations?

Mr. WEINSTEIN. Mr. Chairman, I believe that in some fashion or

another the OGIS system is going to be reality. We are looking at

that. I believe in that. The question then becomes what kind of a

system and what will be the particular strengths of it, how will it

define its tasks.

If you don’t mind, I am going to take a little detour back into history, because that is my profession. I am not an archivist by background. I first testified before one or another of the subcommittees

of Congress on these issues back in 1974 or 1975. I can’t quite remember which year it was. That is a long time in this game, if you

want to say, 35 years, one way or another. I keep meeting people

who have been in the business for a long period of time like that.

One of the things, whatever their particular solutions, whatever

their particular perspectives, one of the things that they point out

all the time is that there was, for a period of years in the mid1970’s with the passage of the Freedom of Information Act amendments made possible by the Watergate events, exposures, the support for open government at the time, that ushered in a period of

relative goodwill. People were working together. People were looking for what several folks on this panel called consensus. They

were looking for a pathway that did not result in massive confrontations but agreed strategies for letting this move forward.

I don’t see how the OGIS process can work in the end without

deep and broad scale consensus made possible by the efforts to consult widespread consultation among all of the various players in

this process.

What does that mean? It means that we cannot return, Mr.

Chairman, at this stage in the game, to a world of FOIA villains

and FOIA heroes. It means we are dealing with a process, and that

process, one of the first things that amazed many of us involved in

it, is how it seemed to be more useful for business people than it

did even for some of the purposes that others had brought to it.

I would say that we should start by basically looking into the

process of how we are communicating with those on the other side

of the issue.

It goes without saying that the administration prefers that this

process be located in the Justice Department. The Congress obviously prefers that the process be located in NARA. If we are mandated to do that, we will do it and will do a good job of it. But this

is something that I hope can happen with the greatest measure of

consultation and dialog, because it is a spirit we are after, it is an

attitude, and that is where the victory can come.

Mr. CLAY. Thank you so much for that response.

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Mr. Blanton, I realize the restraints that Mr. Weinstein is under,

but I am from Missouri, and let me use the bluntest terms that I

know. We know what this administration thinks about the rule of

law. We know what they think about our Constitution and particularly what they think about the FOIA law. As they say in Missouri,

they could care less than what the little bird left on the branch.

So I am going to ask you, the Open Government Act clearly

placed OGIS at the National Archives. Can you tell the committee

why your group advocated for placing OGIS at the Archives?

Mr. BLANTON. Mr. Chairman, as the Congress real clearly said,

there is a conflict of interest that this function is at Justice. The

Congress looked around, and this was bipartisan authors of this

legislation. This was overwhelming approval by the committees and

ultimately unanimously by the Congress.

National Archives is a highly respected institution. All too often

I think National Archives feels like an orphan child. It gets beat

up by the White House, as it did on this very testimony that was

being submitted to your subcommittee at this hearing today. I don’t

think that the National Archives that I have worked with in a collegial fashion for probably two or three decades now is the voice

that you are hearing in this formal testimony, because the National

Archives that I know tries to serve the public, tries to help the public, sees itself as providing essential information and essential evidence to the American people and empowering us.

That is the institution that the Congress picked to make this

function, because requesters could go there, find an independent

voice, find the help they need to mediate disputes, and there were

classic examples of institutions like the Information Security Oversight Office that other witnesses pointed to that should be a great

model.

Now, it is true that office, the Information Security Office, has

about four times as much money as has been appropriated for

OGIS, probably has five times as many staff as OGIS will likely

be able to come up with, and has a 30-year history of effectiveness,

and largely because of the quality of the leadership that came to

that office and the standing of those individuals, and—and I would

echo what Ms. Mutchler said—because those individuals understood that secrecy is a two-edged sword. Too much secrecy is bad

for Government’s process, and that the only way you protect the

real secrets is by letting the maximum amount of the other stuff

out. If that is the kind of director we can get for OGIS I think we

win. We all win. Government, too.

Mr. CLAY. Thank you so much.

Yes, Dr. Weinstein, please respond.

Mr. WEINSTEIN. Thank you.

I have great respect for Mr. Blanton and for his work, but, by

God, I have just as great respect for the work of my colleagues at

the National Archives in, for example, releasing classified materials and declassifying them and releasing them. By the count of

our Director of ISU, we have released, since I became Archivist of

the United States, over 4.5 million pages of previously classified

material. That doesn’t come from people who have no commitment

to the mission.

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I know also under my supervision we rejected the notion of secret

agreements, which I found, too, when I became Archivist. We rejected that notion. We rejected the notion of reclassified materials.

We have a track record, Mr. Chairman, and I want to defend

that track record, but whatever the issues may be at this particular

moment on this particular bill, there is a broader record and, by

and large, I think we have behaved very honorably.

Mr. BLANTON. I agree, Mr. Chairman.

Mr. CLAY. I do, too, and I don’t think anyone at this hearing is

calling into question the Archives’ commitment to open government

or yours, so please don’t misinterpret that. No one is attacking the

National Archives here.

Mr. BLANTON. In fact, we are praising.

Mr. CLAY. That is not what I have heard.

Mr. BLANTON. Yes.

Mr. CLAY. Let me go to my colleague please from Kentucky, Mr.

Yarmuth.

Mr. YARMUTH. Thank you, Mr. Chairman.

Once again, I thank all of you for your testimony.

One of the issues here clearly is compliance. That is what several

of you have mentioned, the problem with ensuring compliance, and

the Office of OGIS is not necessarily going to be able to enforce

FOIA laws. So I will pose the question. It seems to me that you

all mentioned the independence. The one thing that is absolutely

essential if OGIS is going to meet any of its objectives is to maintain absolute credibility, because unless it is totally credible then

its value as an ombudsman is limited.

There was a report issued. I think, Ms. McDermott, you mentioned the same report that the Justice Department did on the

compliance and the performance of the various agencies. There was

a report or document issued by the Coalition of Journalists for

Open Government back in July, and it had actually some pretty

critical comments to make about the Justice Department report,

itself. It called it at one point a rose-colored Justice report, gives

credit in some places where it isn’t due, questioned the methodology, and so forth. You are familiar with that report, obviously?

Ms. MCDERMOTT. Yes.

Mr. YARMUTH. First of all, would you agree with the assessment

of the Coalition of Journalists that the report of the Justice Department was flawed? You can comment on that. And then I guess the

followup is: if that is the case, isn’t it kind of a prima facie case

that OGIS should not be operated within the Department of Justice?

Ms. MCDERMOTT. Absolutely. Let me say first that the Department of Justice does do very good guidance to the agencies through

FOIA posts, does a good training, it cooperates with nonprofit organizations that do training. So what they do, they do well. But they

don’t enforce FOIA. They don’t ensure compliance with FOIA.

Yes, that report was a travesty. The National Security Archive

also did a report about that. Both found that they mislead, they obscured the facts, they didn’t fully report. It is a very confusing report to read, because there is so little data and they draw these

grand conclusions. But, again, in fairness to them, the Executive

order really did not have any accountability or compliance built in.

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Again, the Justice Department was given responsibility for

issuing guidance and doing this report. The report is terrible. I

agree. And I agree with you that it does argue and OIP’s history

argues for this office not being there. They have not had responsibility, statutorily, for ensuring compliance, and they have not

done so. They will specifically say that is not their job.

So it needs to be somewhere, and I think OIP has statutory responsibilities that it does meet and that do serve important functions, and there are new reporting requirements in the law that

will be theirs and that will aid in the Office of Government Information Services and will aid Congress and the President, but they

are different obligations and the Office of Information Privacy and

Department of Justice in general have not taken that responsibility.

As with the backlog for the mediation and all that, I think, while

there is not a basic conflict of interest in that, it is just not something that they have done or that they have been willing to do or

that they have shown any interest in doing.

Mr. YARMUTH. Mr. Blum, did you want to comment?

Mr. BLUM. Can I jump in here? I think that report that you mentioned from the Coalition of Journalists for Open Government is

critical. I think it was called an opportunity lost. I think that is a

very accurate assessment. If you look at the FOIA backlogs, the

number of FOIA requests dropped 20 percent over the 9-year period that it looked at. The staffing was reduced by 10 percent. At

the same time, the backlog tripled and the cost for process in each

request jumped 79 percent. That is what the CJOG study showed

for the agencies that it looked at. That is a huge opportunity lost.

We need to continue those kinds of analyses and assessment. The

Justice Department at this point has no authority to provide these

kind of mediation services, does not do these kind of assessments

and analyses that we would very much like to see OGIS do so that

we can start targeting the kind of improvements that agencies can

make if they know about it.

Do we know about best practices? Which agencies are doing it

well? Which agencies are doing poorly? That is something that

OGIS could examine. The Archives has the independence, it has

the consistent mission with the presumption of disclosure that exists within the FOIA statute, and it already has a model with this

Information Security Oversight Office. So it makes a tremendous

amount of sense to start this off within the Archives and see how

it works. In a couple years see what is working, what is not working. We have specific recommendations about which cases it can select to be very effective. You might want to adjust those after a

while.

We should be starting this off. I think we are all very excited

among the media group to see this actually get enacted into statute. We want to see it implemented. At the same time, it has to

be adequately funded.

Mr. CLAY. Thank you. We will begin a second round of questions.

I will start with Ms. McDermott.

You state that there is no linkage between the OGIS and FOIA

officers. Why is this necessary for effective implementation of

OGIS? What must the National Archives do to make this link?

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Ms. MCDERMOTT. Well, I think that the problem is in the statute. I think the office was created and given this responsibility for

reviewing the policies and procedures and compliance, and then the

chief FOIA officers that were created by the Executive order were

just sort of incorporated without a lot of thought, I’m afraid, by us

or by the drafters about how those two work together.

The chief FOIA office, I think I agree with Tom that they have

a key role to play at all levels, in the mediation part, in the ensuring compliance part. They specifically have that responsibility. But

they don’t report to OGIS. The statute has them reporting on a

separate line completely within their agency and to the Attorney

General.

I think that if Congress takes seriously and if NARA takes seriously the responsibility of OGIS for reviewing and making recommendations and in that sense ensuring compliance, that we

can’t have these two separate tracks.

One of the things that I suggest is the possibility of a Chief FOIA

Officer Council headed up at the Archives to build a structure for

regular communication between and among the Office of Government Information Services and these agency personnel. They

should continue to report to the Attorney General, but they also

need to have some sort of direct communication, and the Office of

Government Information Services needs to have a direct responsibility for receiving that information, and I would argue that down

the road they need to have some direct authority for issuing regulations or something to help the chief FOIA officers achieve or accomplish their missions within their agencies.

Mr. CLAY. Thank you so much.

Mr. Blum, do you envision OGIS acting as the referee or mediator in disputed FOIA requests to expedite in a timely manner the

requests in order to avoid the backlog such as you cited a reporter

who requested information and they did not receive it? How could

OGIS have impacted that situation?

Mr. BLUM. Well, I think that OGIS has two basic responsibilities:

mediate individual cases where it can make a difference, and to

make the agency respond faster. And for a requester, they are not

getting answers, and so they are not clear if their non-response is

because the agency just hasn’t gotten to the request yet.

Some agencies will spend 4 years and then they will call you up.

I had this experience myself with one agency. They called me up

4 years after my request went in and they said, are you still interested in this? I said I sure am. I have changed jobs twice, but I

sure am interested. Now, what was my request and why was there

such a delay? I said, are you getting pushback? Their response was,

well, you are just next.

So we don’t know are we getting folks behind the curtain saying

we don’t want to give this to you so we are going to kind of twist

you around, or is there just problems because the FOIA process

works slowly?

So an independent mediator can help break through some of the

logjams on the individual cases, but at the same time, by looking

at agency FOIA reports and seeing how FOIA is operating at agencies, seeing which agencies are doing a good job. I have heard the

Defense Department has a very good, at least, processing system,

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so you get a response back quickly. You might not like the response, but you are getting a response back quickly. So that is

going to help you and it is going to help increase trust in the system, and then it will help improve over time how agencies are processing their requests.

Hopefully by putting their advisory opinions online they can

then—you know, agencies can then see them and have some good

standards and some good guidance for dealing with their particular

situation. And then you are going to drive good decisions earlier in

the FOIA response process at agencies. That is ultimately what is

going to make OGIS so effective.

Mr. CLAY. Let me ask a panel-wide question. We will start with

Ms. Mutchler. In your opinion, is it critical that the OGIS report

directly to the Archivist and be an SES-level position, and, if so,

why?

Ms. MUTCHLER. I do agree with that, Mr. Chairman. I think that

you need someone at the senior level that is going to have some

punch here with what they are doing, someone that is not going to

be at a low-level position that is not going to be listened to or is

not going to carry their weight that is necessary.

For me, I believe that the National Archives would be one appropriate place for this, and it is not so much that it is the reputation

of the Archives and what not as critically just keeping it out of the

Department of Justice. Again, that is not, per se, geared toward a

particular administration, but all you need to do is to look at the

memo that was issued by John Ashcroft, the Attorney General at

the time, saying that when you receive a FOIA request in essence—I mean, this is a paraphrase, but the heart of it was find

a way to deny it. And if it is a close call, err on the side of denying

it.

That, in and of itself, I think speaks volumes. For me, it underscores that you need it in a place that has credibility. Credibility

is key here. I believe that the National Archives seems to be a very

appropriate place for that. And it needs to be at the highest level,

reporting directly to the Archivist.

Mr. CLAY. Thank you for your response.

Mr. Blum, do you have an opinion?

Mr. BLUM. We did make that recommendation exactly, that it be

at a high level and an SES position reporting to the Archivist, precisely because you want an entity that is going to be separate from

the Archives or any agency’s own FOIA operations so that it has

the independence from that processing so that when it gives a decision that may err on the side of the agency, the requester knows

that it is credible and it has the independence and the integrity of

that.

You also want a high-level position that will have the reputation

and the respect of other agencies so that it can, when it makes a

decision in a mediation, carry weight with the agency.

So I think it is critically important that it be at a high level, that

it report to the Archivist, that it be independent from, obviously,

the Justice Department, and from within the Archive’s own FOIA

operation.

Mr. CLAY. Thank you for that response.

Ms. McDermott.

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Ms. MCDERMOTT. I absolutely agree. You said yourself that in

order for this office to be effective it is going to have to have credibility, and in order for it to have credibility the person that has

this is going to have to be at least at a level comparable with the

chief FOIA officers in the agencies, and if it is a person who is buried fairly deeply in the NARA structure, that is not going to happen.

They also need, I would agree, independence within NARA. And

also just from a purely practical level, if we want to attract the best

possible candidates for this extraordinarily important office, one

that is going to have a real impact on the future of FOIA and its

effectiveness to the average citizen, it needs to be at a senior

enough level that you really do attract senior level, highly competent individuals to apply for this position.

Mr. CLAY. Very good point. Thank you.

Mr. Blanton.

Mr. BLANTON. I totally agree with that, and I think one of the

attractions for this position is that whoever is appointed to this job

come March 2009 is immediately going to be invited on a nice junket to Norway to meet all the other information commissioners

around the world in what will be their sixth annual Conference of

Information Commissioners, and see what kind of lessons can be

drawn from all those amazing, very different experiences.

I think it is a vote of real respect. I would go beyond what Ms.

Mutchler said about to keep it out of the Department of Justice.

I think also this designation from the requester community and

from the Congress for the National Archives to host this office is

a profound vote of confidence and respect in the National Archives

as an independent institution. It just needs to take this and run

with it.

Mr. CLAY. Thank you. Norway sounds tempting. Maybe I need to

dust off my resume.

Dr. Weinstein.

Mr. WEINSTEIN. Mr. Chairman, I don’t know if I am running

with anything, but let me run my mouth off a little bit on some

of this, after all these provocative and appreciative comments.

I get the sense from most of my colleagues at the Archives that

they would not find unwelcome the idea of a senior level appointment of this kind and the Archivist playing this role. Neither

would I, I suppose. It follows what I have been looking for when

I have been stressing perhaps in my fundamental naivete we’ve

managed.

The fact is that goodwill is going to help this process. We have

seen that. I have seen it very directly in connection with several

other committees, as you know, which have been working with the

administration to try to negotiate different results with some success. We have been involved in a few of those.

I would like to strongly urge you and your colleagues, whatever

you may decide about the senior officer of this process, to see if it

would not be possible, even at this late date in the game, to sit

down privately with representatives of the majority and minority

on the Hill, the White House, we are happy to play a role if we

can, to try and get this process back on track so it becomes a consensus project. In fact, I think that would help it tremendously

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down the road. But as for what the committee does, we serve at

the pleasure of Congress and we will just await what happens.

Thank you.

Mr. CLAY. Thank you for your suggestion.

Now I would like to recognize my friend.

Mr. YARMUTH. Thank you, Mr. Chairman.

I want to pursue this issue. Ms. Mutchler, you talked about the

memo that was released when it was discovered by Attorney General Ashcroft, and there is a temptation, I think, maybe among

many of us who don’t appreciate this administration’s attitude toward transparency, to say, well, 125 days from now things are

going to be fine, we do not have to worry about this. It will obviously be better. But I suspect that all of you have experiences with

other units of government, both maybe Federal and elsewhere, that

would illustrate that resistance to this type of transparency is not

limited to the Ashcroft Justice Department.

Ms. MUTCHLER. I would agree with that, Congressman. What I

have seen is that it is the one issue that goes across party lines,

to be honest.

Mr. YARMUTH. I am trying to be bipartisan.

Ms. MUTCHLER. Exactly. And that is another reason why I think

that, in my experience, what I have seen is that Democrats and Republicans, alike, have used the Freedom of Information Act as a

way to deny information to citizens. That is why I stress in my remarks that keeping this out of Justice does not, per se, speak to

this administration in and of itself.

You know, you need to protect this and shield this and have this

in an agency such as archives that has a reputation for fairness,

that, as my colleague said, is a vote of confidence, and no one

should believe that this is one particular party or administration

over another.

What I have found is—and I am still looking to the answer as

to why—people in public bodies start with the premise that the

record is closed and not available, and that is a critical difference

that needs to be changed, and it is why I underscore that you need

a director that will have the independence to push to create that

presumption of openness, no matter who the requester is and no

matter what political powerhouse is holding the record. It is the

only way it is going to work.

Mr. YARMUTH. Mr. Blanton, you seem to be chomping at the bit

there to say something.

Mr. BLANTON. Well, as you probably know, Congressman

Yarmuth, President Johnson had to be dragged kicking and

screaming into even signing the bill. I think if Bill Moyers, his

press secretary, hadn’t set him up with some nasty newspaper editors calling in and saying you had better sign this, it never would

have happened. It is a bipartisan problem. All bureaucracies across

world history resist this kind of openness and accountability. I

think one of the geniuses of the American system is that we count

on it, we rely on it, it is a basis.

I would just make one point, though. The current administration

produced that Executive order 2 years ago. I just wanted to give

a compliment to President Bush, which is a rare thing when approval ratings are running 28 percent, but he did an Executive

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order on Freedom of Information improvement to make it more citizen centered back 2 years ago.

[Hearing closed off record.]

[Whereupon, at 3:23 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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