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WHY ISN’T THE DEPARTMENT OF HOMELAND SECURITY MEETING THE PRESIDENT’S STANDARD

ON FOIA?

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

MARCH 31, 2011

Serial No. 112–22

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

(III)

C O N T E N T S

Page

Hearing held on March 31, 2011 ............................................................................ 1

Statement of:

Callahan, Mary Ellen, Chief Privacy Officer, the Privacy Office, U.S.

Department of Homeland Security; and Ivan Fong, General Counsel,

Office of the General Counsel, U.S. Department of Homeland Security .. 10

Callahan, Mary Ellen ................................................................................ 10

Fong, Ivan .................................................................................................. 20

Edwards, Charles, Acting Inspector General, U.S. Department of Homeland Security; and John Verdi, senior counsel, director of Open Government Project, Electronic Privacy Information Center ................................ 59

Edwards, Charles ...................................................................................... 59

Verdi, John ................................................................................................. 69

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

Callahan, Mary Ellen, Chief Privacy Officer, the Privacy Office, U.S.

Department of Homeland Security, prepared statement of ...................... 13

Connolly, Hon. Gerald E., a Representative in Congress from the State

of Virginia, prepared statement of .............................................................. 129

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 8

Edwards, Charles, Acting Inspector General, U.S. Department of Homeland Security, prepared statement of .......................................................... 61

Fong, Ivan, General Counsel, Office of the General Counsel, U.S. Department of Homeland Security, prepared statement of .................................. 22

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, prepared statement of ................................................................ 3

Towns, Hon. Edolphus, a Representative in Congress from the State

of New York, prepared statement of ........................................................... 127

Verdi, John, senior counsel, director of Open Government Project, Electronic Privacy Information Center, prepared statement of ....................... 71

(1)

WHY ISN’T THE DEPARTMENT OF HOMELAND

SECURITY MEETING THE PRESIDENT’S

STANDARD ON FOIA?

THURSDAY, MARCH 31, 2011

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 9:35 a.m., in room

2154, Rayburn House Office Building, Hon. Darrell E. Issa (chairman of the committee) presiding.

Present: Representatives Issa, Burton, Platts, McHenry, Jordan,

Chaffetz, Walberg, Lankford, Amash, Buerkle, Meehan, DesJarlais,

Gowdy, Ross, Farenthold, Cummings, Towns, Norton, Tierney,

Connolly, Quigley, Davis, and Welch.

Staff present: Steve Castor, chief counsel, investigations; Jonathan Skladany, senior investigative counsel; Jessica Laux and

Rafael Maryahin, counsels; Jean Humbrecht and John Ohly, professional staff members; Molly Boyl, parliamentarian; Ashley

Etienne, director of communications; Kate Dunbar, staff assistant;

Adam Fromm, director of Member liaison and floor operations;

Linda Good, chief clerk; Laura Rush, deputy chief clerk; Dave

Rapallo, minority staff director; Suzanne Sachsman Grooms, minority chief counsel; Krista Boyd, minority counsel; Adam Miles and

Amy Miller, minority professional staff member; Lucinda Lessley,

policy director; and Carla Hultberg, minority chief clerk.

Chairman ISSA. This hearing will come to order. The full committee hearing is on Why Isn’t the Department of Homeland Security

Meeting the Presidential Standard For FOIA? I hope by the end of

today we’ll find that it wasn’t, but it is now.

It is a policy of the committee to have our mission statement in

our opening. So with that, the Oversight Committee, we exist to secure two fundamental principals: First, Americans have a right to

know the money Washington takes from them is well spent. And

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 Federal

bureaucracy. This is the mission of the Oversight and Government

Reform committee.

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Today’s hearing follows an 8-month investigation into what we

believe are abuses of procedures at Department of Homeland Security. This matter could have been resolved in July 2010 when DHS

first was confronted with allegations of political interference with

FOIA process. I might add that came from the Associated Press

and others who looked into this.

The Chief Privacy Officer we believe misled committee staff in

2010 briefing. If not for a whistleblower, the truth of the matter

may never have come to light. That whistleblower was asked to

clear her office, lost her job, and title and responsibility, was moved

to a smaller office with narrower responsibility the day after she

testified. That concerns us that the Department of Homeland Security is not taking the responsibility to the hard-working men and

women in the FOIA Department to this day.

The truth of this matter is that the Secretary’s political staff did

approve significant releases, they delayed responses, they withheld

documents, they conducted weak searches. And by that, I mean

non professionals searched their own documents, using their own

selected key words, and did not, in fact, avail themselves of the career professionals who were there long before them and know the

system.

Documents and witness testimonies show that the Chief Privacy

Officer statements from September 2010 are indefensible. Yet several of them appear in her testimony at this hearing today. She

continues to insist that the policy implemented in September 2009

was intended to merely make political staff aware of significant releases. The bottom line is, responses could not go out the door until

a political appointee said so. And the problem that the Department

has not accepted accountability for. The disparity between the Department’s FOIA compliance and the President’s promise about

transparency and accountability is stark.

The committee is committed to getting to the bottom of the

abuses of DHS and making sure that the politicization of the transparency issue does not metastasize—that word I can do—throughout the Federal bureaucracy.

The chair is further concerned that there was a requirement we

discovered through whistleblower and documents that, in fact, one

of the most important issues that came wasn’t just the document

related to FOIA, but, in fact, who was sending it, whether it was

a political individual or the press. That wreaks of Nixonian enemies list, and this committee will not tolerate it.

[The prepared statement of Hon. Darrell E. Issa follows:]

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Chairman ISSA. With that, I recognize the ranking member for

his opening statement.

Mr. CUMMINGS. I thank the chairman for calling this hearing.

Mr. Chairman, I’ve said it before and I’ll say it again, my goal is

to always be as constructive as possible, so let me start with what

I think we do agree on. First, I think you and I agree with President Obama’s decision on his first day in office to reverse 8 years

of previous administration’s FOIA policy. To adopt a presumption

in favor of disclosure and to renew the Federal Government’s commitment to FOIA.

I think we would also agree that the process used by DHS to review certain FOIA responses in 2009, 2010 was not efficient. Sometimes led to delays and caused confusion about roles and responsibilities that resulted in our interoffice tension at DHS.

Finally, I think we can agree that since then, DHS has made significant improvements, but it must continue to take additional

steps to fully address these concerns and I am convinced that we

can always do better.

Despite some areas of agreement, however, we part ways when

you make extreme accusations that are not supported by the documents, not supported by the interviews, and not supported by the

investigation conducted by the DHS inspector general’s office. Over

and over again, you’ve claimed that DHS officials are making FOIA

decisions based on partisan political considerations. In July, you

claimed DHS, ‘‘Ignored the intent of Congress and politicized the

FOIA process.’’ In August, again, you claimed that political appointees at DHS, ‘‘Inappropriately injecting partisan, political considerations into the process.’’

You continue to make these accusations today. Even though the

committee has concluded interviews—conducted interviews and

gathered documents that show the opposite to be true. The report

you released yesterday accused DHS officials of, ‘‘Illegal

politicization.’’ It claimed that political considerations were an important factor in the process. And without requesting a single document from the previous administration, the report concluded that

the FOIA process is now, ‘‘More politicized than when President

Obama took office.’’

These extreme accusations are unsubstantiated. In preparation

for today’s hearing my staff examined eight different allegations in

detail. They reviewed the documents produced to the committee, as

well as the transcripts of interviews conducted by committee staff.

We found no evidence that DHS withheld any information for partisan political purposes. We found no evidence that FOIA requesters received different treatment based on their political affiliation.

And we found no evidence that DHS officials implemented the

FOIA process to advance partisan political objectives.

In every instance we examined, information was withheld only

with the approval of either the FOIA office or the general counsel’s

office. This is not just our assessment and I repeat that, this is not

just our assessment. This is also the conclusion of a DHS inspector

general, which issued a report yesterday refuting these specific allegations. This is what the IG investigator said, ‘‘After reviewing

information and interviewing DHS FOIA experts, we determined

that the significant request review process did not, did not prohibit

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the eventual release of information.’’ And it goes on to say, ‘‘None

of this information demonstrated that the Office of the Secretary

prohibited the eventual release of information under FOIA. Information we obtained from FOIA, the FOIA staff and our review of

documents corroborates this assessment.’’ It goes on to say, ‘‘No

FOIA officer said that the requesters were disadvantaged because

of their political party or particular area of interest.’’

Mr. Chairman, our committee has a great opportunity to help

Federal agencies as they strive to achieve President Obama’s high

standard. We must also have an obligation to conduct oversight

that is responsible, and indeed fair. In the long run, as I said many

times, we are just as concerned about government running well as

you are. And it is just as important to us as it is to you, because

we are Americans too and we want our constituents to be served

well. That’s what this is all about, this is the all-American way. It

is not about a Republican way, it is not about a Democratic way,

it is about the American way. And so with that, Mr. Chairman, I

want to thank you again for holding this hearing, and with that,

I yield back.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Chairman ISSA. I thank the gentleman, I thank him for using

Chuck Schumer’s extreme word the appropriate amount of times.

Members may have 7 days in which to submit opening statements and include extraneous information into the record. Pursuant to committee rules, all members are to be sworn, would you

please rise to take the oath?

[Witnesses sworn.]

Chairman ISSA. Let the record indicate both witnesses are in the

affirmative.

In order to allow time for discussion, this committee has a longstanding policy of asking you to—your entire opening statements

be placed in the record. We would ask you to stay as close as you

can to within 5 minutes. I don’t cut people off mid sentence, but

if I think you get to the end of a paragraph, I will.

We expect to have only one round of questioning unless there is

a specific request for a second round. And our goal is to make this

factual and succinct, so I will be pretty heavy handed with people

on this side. If someone runs to where you see a red light on during

questioning and they still haven’t gotten to the question, you may

see a gavel and you won’t have to answer. So it is fair warning to

both sides that we want to keep you within your time. We also

want Members here to ask questions so that you have proper time

to respond.

Additionally, we are not prohibited from having votes. If we have

votes, we will wait until about 5 to 10 minutes after the vote has

been called because the first one is 15. We will recess and as soon

as there’s a two-person working group back here we will reconvene,

even if I’m not back here, whoever the senior Republican is, we will

commence so that we can be cognizant of your time and schedule.

I didn’t want to make any mistakes on the name even though

they are in front of me, the chair now recognizes our first panel,

Ms. Mary Ellen Callahan is the Chief Privacy Officer of Department of Homeland Security, and Mr. Ivan Fong is the general

counsel to the Department of Homeland Security. We are pleased

to have both of you here today and with that, ladies first.

STATEMENTS OF MARY ELLEN CALLAHAN, CHIEF PRIVACY

OFFICER, THE PRIVACY OFFICE, U.S. DEPARTMENT OF

HOMELAND SECURITY; AND IVAN FONG, GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL, U.S. DEPARTMENT

OF HOMELAND SECURITY

STATEMENT OF MARY ELLEN CALLAHAN

Ms. CALLAHAN. Thank you, sir. Good morning Chairman Issa,

Ranking Member Cummings and distinguished members of the

committee. I am Mary Ellen Callahan, the chief FOIA officer and

chief privacy officer at the Department of Homeland Security. My

office administers policies, procedures, programs to ensure that the

Department complies with the Freedom of Information Act and the

Privacy Act. I appreciate the opportunity to appear before you

today to discuss the Department’s Freedom of Information Act

processing and policy, both past and present.

Two years ago, the Department faced a backlog of more than

over 74,000 FOIA requests. We began to work immediately to adVerDate 11-MAY-2000 11:07 Sep 14, 2011 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67719.TXT KATIE PsN: KATIE
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dress the issue and have had success. Under this administration,

we have reduced the backlog by 84 percent, for more than 63,000

FOIA requests. In fiscal year 2010 alone, DHS reduced its backlog

by 40 percent, eclipsing both the governmentwide open government

directives instruction to reduce the FOIA backlog by 10 percent

each year, as well as DHS’s own open government plans goal of a

15 percent reduction for the fiscal year.

In fiscal year 2010, 650, less than one half of 1 percent of the

more 138,000 FOIA requests processed, were deemed significant by

career FOIA officers pursuant to the standards that were established at the Department in 2006. The significant requests include

those related to ongoing litigation, related to sensitive topics, requests made by the media and requests related to Presidential or

agency priorities. In these relatively few cases, senior department

management was provided an opportunity to become aware of the

contents of a release prior to its issuance to the public. To enable

them to respond to inquiries from Members of Congress, to enable

them to respond to inquiries from their staffs, media and the public, and to engage the public on the merits of the underlying policy

issues.

The significant FOIA request—the significant FOIA review process began after several significant FOIAs were released at the beginning of the new administration without notice to senior management. These significant FOIA responses related to ongoing litigation, records from the previous administration, and records from

other departments. The bottom line is, that basic lack of awareness

of significant FOIA responses hinder the Department’s abilities to

manage and oversee the Department.

The transition of where we were then and where we are now was

not seamless. There were management challenges in implementing

the awareness process initially. However, we recognized these problems at the time and have taken significant action to address them.

I believe that transitioning to the SharePoint system last year represents a significant step forward and I believe it is now a system

that works effectively and efficiently for FOIA professionals in my

office and for senior management across the Department.

At the same time we were implementing this awareness process,

the average number of days it takes the Department to process a

FOIA request has decreased significantly from 240 days to 95 days,

a record of which the Department is rightfully proud.

There have been allegations that political appointees in the Department’s front office redacted FOIAs and restricted their release.

Let me be clear, to my knowledge, no one other than a FOIA professional or an attorney in the Office of the General Counsel made

a substantive change to a proposed FOIA release. Further, to my

knowledge, no information deemed releasable by the FOIA office or

the Office of General Counsel, has at any point, been withheld and

responsive documents have neither been abridged nor edited. I

would also point the committee to the inspector general’s independent analysis that makes many critical findings, including the significant request review process did not prohibit the eventual release of information; no FOIA requesters were disadvantaged because of their political party or particular area of interest; the Office of the Secretary is responsible for overseeing DHS operations,

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and thus is well within its rights to oversee the FOIA process; and

DHS has made important progress in sharing openness, including

through proactive disclosure.

We concur with all six of the IG recommendations. I am heartened to see that the inspector general sees the progress we have

made. We are committed to doing more and we look forward to

working with the committee on these important issues. I’d be

happy to take questions, thank you.

Chairman ISSA. Thank you.

[The prepared statement of Ms. Callahan follows:]

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Chairman ISSA. Mr. Fong.

STATEMENT OF IVAN FONG

Mr. FONG. Good morning, Mr. Chairman, Ranking Member

Cummings and distinguished members of this committee. My name

is Ivan Fong, I am the general counsel of the Department of Homeland Security, I appreciate this opportunity to appear before you

today to discuss the Department of Homeland Security’s Freedom

of Information Act policies.

As general counsel, I lead and oversee a law department of more

than 1,800 lawyers in our headquarters and our component legal

offices. In my leadership capacity, I emphasize the important role

DHS lawyers play both in advising on and in insuring compliance

with the law and in setting high standards for professional and

personal integrity across the Department.

In the course of performing their duties, headquarters attorneys,

as well as lawyers in our component legal offices, may be called

upon to interpret the FOIA statute, and to apply its provisions to

records collected and processed by the office of privacy for possible

disclosure in response to FOIA requests.

As you know, FOIA establishes a mechanism that makes records

held by agencies and departments of the executive branch accessible to members of the public, except to the extent the records, or

portions thereof, are protected from disclosure by one of nine statutory exemptions, or by one of three special law enforcement record

exclusions. The nine exemptions included in FOIA reflect Congress’

recognition that the goal of an informed citizenry, vital to the functioning of a democratic society, must sometimes be balanced

against other important societal goals such as protecting the confidentiality of sensitive, personal, commercial and government information.

This administration has taken significant steps to increase openness in government. In January 2009, for example, President

Obama issued two important memoranda to the heads of executive

departments and agencies concerning government transparency. In

his transparency and open government memorandum, he committed this administration to, ‘‘Unprecedented level of openness in government.’’ And in his Freedom of Information Act memorandum, he

stressed the importance of FOIA stating that it is, ‘‘The most

prominent expression of a profound national commitment to insuring an open government.’’

To reinforce this commitment to transparency, Attorney General

Holder, in March 2009, issued a guidance memorandum that

among other things, reiterated the President’s call for a proactive

disclosure in anticipation of public interest. Required agencies to

consider making partial disclosures whenever full disclosure of a

record is not possible, and urge agencies to create and maintain effective systems for responding to requests. Against this backdrop,

the Department’s lawyers provide day-to-day legal advice to the

Department’s chief FOIA officer, her staff and others in headquarters and their components who are responsible for responding

to FOIA requests. In doing so the lawyers who practice in this area

provide legal advice on specific requests and potentially responsive

records. And they do so based on their best understanding of the

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facts and their best legal analysis and interpretation of the FOIA

statute, the relevant case law, and applicable guidance.

With respect to the involvement of the Office of the Secretary

and other senior department leaders in being informed of significant events affecting the Department, including the release of significant departmental information, the Secretary and her staff

have, in my view, clear statutory authority to ask questions of, review and manage the operations of all parts of the Department, including the privacy office and its elements that handle the FOIA

process.

Similarly, the Attorney General’s 2009 guidance states in relevant part, that responsibility for effective FOIA administration belongs to all of us, it is not merely a task assigned to an agency’s

FOIA staff. It is, therefore, my view that it is not only legally permissible, but sound managerial practice for the Office of the Secretary to be informed of, and in coordination with the chief FOIA

officer to play a role in overseeing the Department’s FOIA processes.

As my colleague, Ms. Callahan, has just described the significant

FOIA review process has evolved over time to become more streamlined and more efficient. Despite some challenges in the early implementation of the review and those problems have been acknowledged and remedied, the Office of the General Counsel will continue to engage with the Department’s chief FOIA officer and staff

across the Department to help ensure that we continue to disclose

responsive records properly, and promptly, and in the spirit of cooperation that adheres to the letter and spirit of the President’s direction. Thank you very much, Mr. Chairman.

Chairman ISSA. Thank you.

[The prepared statement of Mr. Fong follows:]

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Chairman ISSA. I will now recognize myself for 5 minutes.

Ms. Callahan, is AP on your enemies list? I’ll take that as a no,

unless you want to answer. I mean, you know, there has been this

talk about—in your opening statement about, you know, political,

political. Yes, there were Members of Congress and others who

wanted it who have Rs and Ds after their name, but it appears as

though your office wanted to know if the Associated Press wanted

something. You wanted days to prerelease, or to spin or to decide

to take information that was sensitive or embarrassing and get it

out in some format. You wanted days before the Associated Press

would have they waited weeks or months for.

So let me just understand this. The words you used, because I

want to make sure that the words are very careful, because what

you said to the committee turned out not to be completely accurate

some time ago. You used the word ‘‘eventual’’ repeatedly. ‘‘Eventual’’ means that a right delayed is not a right denied. Do you

stand by that position that 3 days, 6 days, 90 days, they are all

OK as long as eventually you comply with FOIA? Yes or no, please.

Is ‘‘eventual’’ good enough? Is a delay of 3 days, 30 days or 90 days

OK and still compliant with FOIA, in your opinion.

Ms. CALLAHAN. The initial FOIA review process had——

Chairman ISSA. Answer the question please.

Ms. CALLAHAN. We have made great strides to——

Chairman ISSA. Is a 3-day, 30-day or 90-day all acceptable as

FOIA compliant? Because you used the word ‘‘eventual’’ but, in

fact, there were clear delays produced by this policy a pre alerting

as to who wanted what so the political appointees could do what

they wanted before it got out in some other way. So is 3 days, 30

days or 90 days an acceptable delay and still compliant with FOIA,

yes or no?

Ms. CALLAHAN. I have very high standards and that did not meet

my standards.

Chairman ISSA. Mr Fong, you’re not answering the question.

Ms. CALLAHAN. I did, sir. That did not meet my standards.

Chairman ISSA. OK. So you didn’t meet the standards, you were

causing delay, and ‘‘eventual’’ should not be a wiggle word here in

your statement. The fact is, there were delays. The IG is saying it

did not stop eventual delay, didn’t change the fact that you were

delaying, and it did meet your standards. And if the IG were doing

their job, you would clearly have the need to stop eventual and

make it prompt.

Mr. Fong, you were aware that there were delays produced as a

result of political appointees receiving this information. Did you do

anything about it? Did you consider it a problem that 3 days, 30

days or 90 days of additional delay occurred because political appointees were evaluating the sensitivity of a piece of maybe embarrassing information or politically sensitive information becoming

public?

Mr. FONG. I believe that it is important for FOIA responses to

be promptly disclosed. I believe also, though, that the Secretary’s

office has a legitimate interest.

Chairman ISSA. So you believe that a delay in order to evaluate

the political ramifications and potentially release something someVerDate 11-MAY-2000 11:07 Sep 14, 2011 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67719.TXT KATIE PsN: KATIE
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one has waited for 90 or 180 days for, release it before you even

give it to them is OK under FOIA?

Mr. FONG. No.

Chairman ISSA. That’s what was—that’s what was possible as a

result of this policy, wasn’t it?

Mr. FONG. With all respect, Mr. Chairman, that’s not what I

said. I said that it is important for releasable records to be released, but I believe though also that the Secretary’s office has an

interest in knowing what is——

Chairman ISSA. Mr. Fong, I asked about the interference, I did

not ask about the interest. Nobody on this dais, I believe, today,

will assert that if as a FOIA request was going out simultaneously,

even the evening before the morning it was sent to the offices so

they would be aware and be able to develop appropriate responses

if the very next day it appeared on the front page of the New York

Times.

Bottom line, though, is your offices had them days or weeks or

months beforehand, and in some cases, clearly could have spun the

story before the facts were given out.

Let me move on to one thing, put up slide No. 1, there will be

more slides today, but this one is—it is very hard to read that. Do

we have—do you have a copy?

Ms. CALLAHAN. No, we don’t.

Chairman ISSA. OK. Would you please give the witnesses a copy.

Essentially you have an exemption for predecisional communication. On the left, you will see the redacted version. On the right,

you will see—and this was the type of information the AP was

looking for that they felt this policy confounded. It says and, this

is for you, Mary Ellen Callahan, ‘‘Were you concerned that the forwarding of every request on a weekly report to the Secretary’s political staff would burden the staff?’’ In other words, that’s one of

the things redacted.

Or more specifically it says, ‘‘Not sure what the confusion is, but

please know this request is coming directly from the front office.

NOAA is fully briefed. Can you please have your staff forward the

actual FOIA requests that are included in our weekly reports each

week so we can refer to them as needed.’’

Now that was redacted. So basically you made a decision, the decision is to forward it. A newspaper agency wants information, and

what I read here is we’re redacting about not a predecisional process, but a decision that has been made. And this was exactly what

they wanted to understand. The AP wanted to know, and had a

right to know, a constitutional obligation under freedom of the

press, they wanted to know if you were doing exactly what you

were doing and that information was redacted in this. Now you

have a copy of it. Please respond and my time has expired so we

will be brief.

Ms. CALLAHAN. Actually, Mr. Chairman, with regard to the AP

request about FOIA processing, my office was recused as is the normal practice with—if my office is the direct subject of the FOIA request, and so my office did not make that B5 determination. The

Office of the General Counsel did.

Chairman ISSA. OK. So Mr. Fong, you redacted actual substantive information that clearly was exactly what the AP was

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looking for, you redacted it, and when they tried to get the information, it was not predecisional, it was not executive privilege, but it

clearly was what they had a right know and we are finding out

about here today. Would you explain why?

Mr. FONG. Well, Mr. Chairman, I was not personally involved in

making this decision, my staff, though, does have expertise in this

area. I cannot speak to this particular redaction or other redactions

that were or were not made. I can say, though, that there is an administrative appeals process that exists precisely to correct such

issues and to correct any mistakes. My understanding is that these

records are going through such an appeal, and I believe it would

be premature therefore for me to opine.

Chairman ISSA. OK. Well, my time has expired. We’re going to

go to the ranking member and—but what I will do is I’m going to

have copies of all of this delivered to you so you can look through

them and know them in advance because we have a number of

these types of records.

And I think the ranking member would agree with me that, quite

frankly, it is very hard to appeal a redaction because you don’t

know what you don’t know. I yield to the ranking member.

Mr. CUMMINGS. Thank you very much, Mr. Chairman. Let me—

one of the things I have seen in this committee before, and it is

something that I’m very concerned about is when people come before us and you’re not allowed to try to answer the question that

you’ve been asked.

So I’m going to go to you, Ms. Callahan, because I realize that

this is not an easy process, that you’re coming before a committee

and you’re probably a little nervous, and people are watching this,

and there is life after this moment, and you have a reputation. And

I want to give you a chance to answer the question. You tried to,

but you weren’t permitted to. You stated that delays do not meet

your high standards, and during the delays that Chairman Issa

discussed, were officials weighing partisan political concerns to

your knowledge?

Ms. CALLAHAN. To my knowledge they were not, sir. And that

was confirmed by the inspector general’s report.

Mr. CUMMINGS. And what were they doing——

Ms. CALLAHAN. Sir——

Mr. CUMMINGS [continuing]. To your knowledge?

Ms. CALLAHAN. To my knowledge, the front office was wanting

to have awareness of significant FOIA activities in order to engage

the public on the underlying merits of the debate. They were not

delaying it, they may have not had the opportunity to review it in

a timely fashion, and that did not meet my standards, which is

why we shifted to the SharePoint system described in more detail

in my written testimony.

Mr. CUMMINGS. Now, was it—was the general counsel reviewing

documents for legal sufficiency so they could meet the standards?

Ms. CALLAHAN. There were at times as I understand some documents that had been identified as being insufficiently or inappropriately processed. And for that, they went to the Office of the General Counsel for a further review as is the typical process in the

Department of Homeland Security.

31

Mr. CUMMINGS. And let me ask you this: Were you taking your

time in order to ‘‘spin’’ stories prior to release of documents?

Ms. CALLAHAN. No, sir. To my knowledge, the Department was

not engaging in spin. They wanted just awareness of the underlying issues in the FOIA releases that they did not modify. They just

wanted to know what was in the documents.

Mr. CUMMINGS. And I want to thank you for saying, and I know

you mean it that you have high standards. We understand that

you’re one person, and you have people who work with you; is that

correct?

Ms. CALLAHAN. That is correct, sir.

Mr. CUMMINGS. Mr. Fong and Ms. Callahan, the chairman has

repeatedly stated that DHS officials make FOIA decisions based on

partisan political factors. Last summer, he said political appointees

inappropriately injecting partisan political considerations into the

process. And in his report yesterday, he said political considerations were an important factor in your FOIA decisions. These are

serious, very serious, very serious allegations. But based on our review of the documents and interviews, we could not identify any instances where this actually happened.

So let me ask you directly, are either of you aware of any case

in which DHS withheld information from FOIA requesters based

on partisan political considerations?

Ms. CALLAHAN. I’ll answer first, no, sir, I am aware of no such

circumstance.

Mr. CUMMINGS. Mr. Fong.

Mr. FONG. And I am not aware of either.

Mr. CUMMINGS. The inspector general who will testify on the

next panel also refuted this allegation. In his report—and this is

the inspector general, he says, ‘‘after reviewing information and

interviews the DHS FOIA experts we determined that the significant request review process did not prohibit the eventual release

of information.’’ He also said this, ‘‘No FOIA officers said that requesters were disadvantaged because of their political party or

area of interest.’’ Are you familiar with the IG’s finding and do you

agree with him?

Ms. CALLAHAN. Sir, I am familiar the IG’s findings and I do

agree with them, and I appreciate their inspection in this matter.

Mr. CUMMINGS. Well, let me turn to what I think was the real

problem. Our review found that your two officers were not working

together as efficiently and effectively as they could. In fact, we

found there was real tension between the FOIA’s office and the

general counsel’s office. And let me give an example. On March

3rd, our staff interviews Catherine Papoi?

Ms. CALLAHAN. Papoi, sir.

Mr. CUMMINGS. Papoi, who works in Ms. Callahan’s office. She

told our staff that she had serious issues with an attorney who

handles FOIA requests in your office, Mr. Fong. And when Ms.

Papoi was asked to describe the problem, she said this, ‘‘I do not

consider him to have expertise in FOIA. There have been several

times I have had to educate him on some very basic concepts.’’

Mr. Fong, how do you respond to her concern that the attorney

in your office was not qualified to work on FOIA requests?

32

Mr. FONG. I disagree with the view, Congressman, that this attorney in question was not qualified to respond to her requests. As

you know, FOIA’s a very technical and complex area. It is true that

he did not practice in this area full-time, but he oversees a group

of lawyers who do. And he has, I believe, very good judgment and

applied his best understanding of the statute and exercised good

faith and reasonable judgments to the questions that he was presented with.

Mr. CUMMINGS. So let me be clear. This has nothing to do with

political issues, these are two career employees who seem to have

difficulty working together. I think we see that all the time, even

here on the Hill.

Ms. Callahan, how about you? How can we expect a FOIA process to work when career officials in your office and Mr. Fong’s office can’t work together?

Ms. CALLAHAN. Sir, we are working to address what our reasonable disagreements among others, and I think it is important to

make sure that we put personality aside and try to work to solve

this problem. So we recognize it to be a concern and we are working diligently on it.

Mr. CUMMINGS. And finally, let me back this up, as the leaders

of your two offices, is it your job to get your employees to rise above

these current tensions and rebuild the trust level? And what is

your plan to do that? And how do you plan to resolve substantive

disputes between your officers in the future?

Ms. CALLAHAN. I strive to be a good manager. I make sure that

indeed these types of issues are not impacting the effectiveness of

our offices and I have—will work diligently to attempt to address

that through individual consultations, as well as, perhaps, collective ways to resolve personality issues not dealing with substance

issues.

Mr. CUMMINGS. Mr. Fong.

Mr. FONG. Thank you, Mr. Chairman. Those who worked with

me know that I take my leadership and management responsibilities very seriously. I have spent a lot of time in my almost 2 years

at the Department insuring that our lawyers work well with their

clients and others around them. I have taken specific actions to

remedy issues that have arisen. And as you said earlier, this is

very—this is not unusual for career professionals who care deeply

about what they do, who are very dedicated, hard-working professionals to disagree at times. And as you said, I believe they should

try to rise above their disagreements.

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

Chairman ISSA. Thank you. For the record we have been informed that the AP’s 9-month old application under the administrative objection has not yet been heard. With that, we recognize

the gentleman from Utah, Mr. Chaffetz.

Mr. CHAFFETZ. Thank you, Mr. Chairman.

Ms. Callahan, I’m going to refer in part to the Associated Press

report of July 21, 2010. I’d like to read some statements from that

and get your reaction to them. Tell me if you believe them to be

true or false. ‘‘If a Member of Congress sought such documents, employees were told the specify Democrat or Republican.’’

33

Ms. CALLAHAN. Sir, that is how Congressmen are referred to ordinarily. In fact, under the——

Mr. CHAFFETZ. But this is a new policy, correct?

Ms. CALLAHAN. If I could, sir. It actually is not a new policy, it

was a policy established in 2006, and it is, in fact, during the significant—the weekly report in which we report these elements.

Mr. CHAFFETZ. To the White House, correct?

Ms. CALLAHAN. Actually, no, to the Department. And then the

Department summarizes, it may or may not report specific elements to the White House. We——

Mr. CHAFFETZ. Sorry, but I want to clarify this.

Ms. CALLAHAN. Yes, sir.

Mr. CHAFFETZ. A report that was putting together second sentence of your July 7, 2009 issuance from you says, ‘‘The privacy office FOIA leadership integrates the information into its weekly report to the White House liaison.’’ So it was for the White House,

correct?

Ms. CALLAHAN. And by integrating it—I don’t know what goes on

with the integration process.

Mr. CHAFFETZ. But it was for the White House.

Ms. CALLAHAN. It may or may not include——

Mr. CHAFFETZ. It was for the White House, correct?

Ms. CALLAHAN. That’s the front office process. I did want to point

out for this weekly significant reporting process, in the 2 years that

I’ve been here, I believe a Member of Congress has been listed on

it once.

Mr. CHAFFETZ. Let me read this, starting in the first paragraph,

‘‘For at least a year, the Homeland Security Department detoured

requests for Federal records to senior political advisors for highly

unusual scrutiny.’’

Ms. CALLAHAN. I disagree with that assessment, sir, as demonstrated in my—more thoroughly, in my written testimony. It was

a process to provide awareness to the senior leadership.

Mr. CHAFFETZ. Let me keep going. ‘‘Probing for information

about the requesters and delaying disclosures deemed too politically sensitive. According to nearly 1,000 pages of internal e-mails

obtained by the Associated Press.’’

Ms. CALLAHAN. As I have discussed with the ranking member

and as indicated in the inspector general’s report, there were indeed management challenges with the initial way that we tried to

do this awareness process. However, political affiliation, parties of

interest did not play a factor. It was logistical issues rather than

management challenges, and that’s demonstrated throughout this

inspection.

Mr. CHAFFETZ. It certainly seems to be inconsistent with your directive of July 7, 2009. Let me read another sentence, ‘‘The Department abandoned the practice after the Associated Press investigated,’’ is that true?

Ms. CALLAHAN. It is not true, absolutely not. The awareness

cam—the awareness process continues today.

Mr. CHAFFETZ. You answered the question, I have a certain

amount of time.

Ms. CALLAHAN. Sorry.

34

Mr. CHAFFETZ. Let me keep going. ‘‘Career employees were ordered to provide Secretary Janet Napolitano’s political staff with

information about the people who asked for records such as where

they lived, whether they were private citizens or reporters and

about organizations where they worked.’’ Is that true or false?

Ms. CALLAHAN. Again, this has been a process since 2006 to provide awareness and to significant issues that may become in the

public domain.

Mr. CHAFFETZ. Let me read another paragraph. ‘‘Two exceptions

required White House review, request to see documents about

spending under the $862 billion stimulus law, and the calendars

for cabinet members, those required White House review,’’ is that

correct?

Ms. CALLAHAN. The calendars—anything that has White House

equities would require White House review. That is——

Mr. CHAFFETZ. What is a White House equity? What does that

mean?

Ms. CALLAHAN. In the circumstances with the Secretary’s calendar to the extent that she was in the White House, or that was

a—disclosing some sort of element. This is a typical process of referring FOIA requests to different departments. It may be their underlying records. That is a standard process throughout the——

Mr. CHAFFETZ. The other part of that is under the $862 billion

stimulus; is that correct? Is that part of the White House equity?

It says ‘‘Two exceptions required White House review. Request to

see documents about spending under the $862 billion stimulus

law,’’ is that correct?

Ms. CALLAHAN. That is correct.

Mr. CHAFFETZ. Why? Why does that require a special White

House review?

Ms. CALLAHAN. Sir, I’m the chief FOIA officer; I’m not a policy

person in this area.

Mr. CHAFFETZ. So is that a directive that you got from the White

House?

Ms. CALLAHAN. I believe I was instructed by the Office of the

Secretary to do that, and we processed it——

Mr. CHAFFETZ. So the Secretary—who directed you to do that? Is

that a document that you can provide for us?

Ms. CALLAHAN. I believe it is in the production. I believe it was

the deputy chief of staff.

Mr. CHAFFETZ. Dep—if it is not in the record, will you provide

that for us?

Ms. CALLAHAN. Certainly. I believe it is in the record. And it was

the deputy chief of staff who instructed us to do so and we did so.

Mr. CHAFFETZ. One last question. Calendars—let me see, my

time has expired.

Chairman ISSA. Will the gentleman yield?

Mr. CHAFFETZ. Yes.

Chairman ISSA. Who was that one Member of Congress that was

sent to the White House?

Ms. CALLAHAN. It wasn’t sent to the White House, sir, it was listed on the weekly report.

Chairman ISSA. Who was it?

35

Ms. CALLAHAN. It was I believe Senator Grassley when he was

asking for a request, we ended up modifying it and not answering

via FOIA, but through a different process. Members of Congress actually don’t file FOIA requests very often, so the issue on the Members of Congress is a relatively moot point.

Chairman ISSA. Except, of course, that the White House has told

us to file FOIA when we’re in the minority and not responded otherwise.

We now recognize the former chairman of the full committee, Mr.

Towns, for 5 minutes.

Mr. TOWNS. Thank you very much, Mr. Chairman. Let me begin

by—first of all, Ms. Callahan, thank you very much for your service, we’ve had an opportunity to follow your record and you’ve done

some great things down through the years, and want to thank you

for that.

You’ve been asked many questions about acceptance of delays in

responding to FOIA. Can you please explain to this committee

what circumstances or what situations that might delay you in responding to FOIA?

Ms. CALLAHAN. Yes, sir. As you know, we take our FOIA responsibilities seriously. At the same time, there are several processes

and steps that I detail in my written testimony that describe the

process that every FOIA, the 130,000 FOIAs that the Department

received last year, each FOIA must go through these steps to make

sure that, indeed, we have identified the Federal records, we have

identified the parties who may have the information, that we have

applied the appropriate exemptions, that we have looked at legal

issues therein, that the process has been reviewed to make sure

that indeed there isn’t any information that is inappropriately disclosed or inappropriately redacted.

And so despite having high standards, the average processing

time for FOIAs in the Department is 95 days. That is, right now,

several days more efficient than the Department of Justice at 113

days, but it is a standard that we are trying to achieve and surpass. So delays are not appropriate for any FOIA, and we are trying to mitigate that problem.

Mr. TOWNS. Are any of these delays caused by political involvement?

Ms. CALLAHAN. Sir, as I had described in my initial testimony

and my written testimony, there were some processes that were involving the awareness review for the Department, but did not involve political activities or instigations as the inspector general has

indicated. The initial way that we started to give the front Office

of the Secretary awareness into some of the significant FOIAs that

may make media attention was not up to my standards, and therefore, we have modified that process, and I believe now we have a

best practice in terms of providing awareness, not only to the front

office, but also to the other FOIA officers, if indeed there are FOIA

requests that may impact their equities.

Mr. TOWNS. Ms. Callahan, can you explain the 2006 directive in

which FOIA requests are referred to the Secretary’s Office, could

you explain that? And I’m not going to tell you give it to me in a

yes or no.

36

Ms. CALLAHAN. Sir, I can’t explain it because I wasn’t here in

2006, but I understand that it is the ordinary process of all administrations to have awareness into significant activities in each of

the components. My Privacy Office provides actually two weekly reports, one on the activities of the entire office, and then separately

on FOIAs that have been provided that may meet these standards

for awareness for the front office, but I understand it is a typical

practice, not only across the administrations, but also across the

Federal Government.

Mr. TOWNS. Thank you. Mr. Fong, what do you feel could be done

to eliminate some of the delays?

Mr. FONG. I think a lot of what can be done has been done in

terms of the significant review process. Having it on the

SharePoint system for 1 day gives time for awareness but does not

add to delay the process of releasing the documents. I think, in

general, if we were more coordinated as a Department, I think we

spend a lot of time as a relatively new Department, trying to figure

out who may be relevant component program individuals, what

documents need to get to whom for the FOIA professionals to review. Our lawyers are very busy, they are hard working, but their

plates are full. It takes time to do an analysis to gather facts, to

make judgments.

I would also say that while I agree that it is important to be

prompt, there has been much made of the 20-business day timeline

which, in my view, is a misnomer if one thinks of it as a violation,

it merely provides that the agency must make a determination

within 20 business days, after which a requester may appeal, or

may seek judicial redress if such a determination is not made.

There are provisions that permit an agency to request an extension. And as Ms. Callahan indicated, many agencies take, on average, longer than 20 business days to respond to a FOIA request.

So I just want to make clear that while we have an interest in

releasing promptly, this is a process that courts and others have

recognized as the Federal Government has become more and more

complex inherently takes time.

Mr. TOWNS. Thank you very much and thank you both for your

service. I yield back.

Mr. MCHENRY [presiding]. I thank the former chairman. And

now I recognize Mr. Meehan for 5 minutes.

Mr. MEEHAN. Thank you, Mr. Chairman. And thank you, Ms.

Callahan and Mr. Fong, for your appearance here today before our

committee.

Ms. Callahan, thank you for your service, you do not have an

easy job. It’s a complex job particularly with a great scope of information that is associated not just with the free flow, but also at

times information that may relate to investigations or other

kinds—it is not an easy job, but I do note that at least the AP has

reported in December 2009, that you found that there was a level

of scrutiny. I think we have had the base established here through

prior testimony, you understand what I’m talking about in the form

of the oversight of political appointees. You say ‘‘that this level of

attention is crazy. I really want someone to FOIA this whole damn

process.’’ What did you mean?

37

Ms. CALLAHAN. Sir, if I could, that of course was a communication with my staff, and I was attempting to support them in this

process. As I’ve indicated earlier, the initial process for the awareness review was not efficient, and it had its management challenges. At the time—therefore, that’s why we have moved to the

SharePoint system that Mr. Fong has referenced and I detail in my

testimony. And I think that’s an important element. We were not

even technologically able to do that in December 2009. In fact,

SharePoint didn’t come on to my office until March 2010. So at the

time my—I was discussing not about the awareness review, because I continue to believe that the Secretary does have important

equities and having awareness into this, but that the level of detail

and paying attention to it perhaps was not where I would have put

my emphasis.

Mr. MEEHAN. Is it your testimony then that was purely process?

Ms. CALLAHAN. Yes.

Mr. MEEHAN. It was just a question of process?

Ms. CALLAHAN. Not a question about—not a question—not questioning the review itself, but the level of detail, thus missing the

3-day window.

Mr. MEEHAN. But we established that there is a level of review

now that goes on in the form of responsibilities for political appointees to have to affirmatively indicate as to whether or not information is to be released.

Ms. CALLAHAN. Sir, let me be clear, that process has been modified, and we no longer have that process at all. That was the initial

process. As I have indicated, that has significant management challenges. That did not meet my standards and that is why the process is modified.

Mr. MEEHAN. What’s the difference? Well—so this doesn’t happen

at all now? There is no affirmative review by anybody?

Ms. CALLAHAN. Absolutely not. There is an FYI review. So what

had happened before is previously, we had no way of sharing the

FOIAs not only between the front office and my office, but also between the components except by e-mail.

Mr. MEEHAN. Well, are you making the calculations with respect

to sensitive information or other kinds of things? Let’s suppose

there is no politics being played here, but there is a security interest. Are you responding to this based exclusively on the issue of

what is in that document from a FOIA perspective or is there anybody looking at redaction or other kinds of issues?

Ms. CALLAHAN. So sir, with regard to—the current system, if I

could just describe the current system it may help explain it. The

current system we now have an intranet-based system where we

can upload it, and the FOIA officer can upload it directly. And then

not only can the people with equities review it, but also the other

FOIA officers can review it if they have equities in it as well. It

is accessible in a centralized base. And in that way, we send out

a notification and say that this is—the request has been made let’s

say——

Mr. MEEHAN. So it’s a notification process?

Ms. CALLAHAN. It is a notification——

Mr. MEEHAN. There is no more a thumbs-up or affirmative by

virtue of any other kind of person above you?

38

Ms. CALLAHAN. That is correct, sir. And that was changed in July

2010. And we believe that this process, it’s just a notification process. People can look at the underlying documents and that has happened a couple of times. Going to your question where people have

caught either predecisional information that may have been sent

out, inaccurate, or incorrect, or insufficient redactions. It only happened a handful of times since July 2010, that’s a much more efficient and better process.

Mr. MEEHAN. So it would be your testimony that there is no

longer any delay associated as there had been in the past where

something would have been prepared for release by you, but it

would have taken an additional period of time to flow up the chain

before you got the affirmative approval by the political appointee?

Ms. CALLAHAN. The new SharePoint system has the documents

unloaded 1 day and they are sent out the next day. So there is arguably a 1-day delay, but as Mr. Fong pointed out, that is to make

sure that we don’t disclose law enforcement sensitive or other

predecisional information inappropriately.

Mr. MEEHAN. Mr. Fong, what level of—I’m out of time, but what

level of training or many engagement do you have with those political appointees about their responsibilities and their obligations

under the Freedom of Information Act who participate with you in

the review of these documents?

Mr. FONG. I just want to be clear what your question is when you

refer to the political appointees.

Mr. MEEHAN. Those—those who in the past, in the past must

have had to affirmatively indicate this complex area and you appreciate that. They were doing the affirmative indication. What—

and now presumably, that’s no longer the case I’m happy to hear

that. I’m concerned with moving forward. Not withstanding if they

are still participating with you in that, to what extent do those individuals, do they have any say, may they be able to reach back

to you and tell you whoa, wait a second, do not release that yet.

Mr. FONG. Of course that is part of the process, then and now,

that the attorneys in our office who have experience and expertise

in this area stand ready to be consulted at any time, whether it is

the FOIA professionals or the political appointees or the program

managers who will have a much better sense of the impact of a disclosure as is required to be assessed under the Attorney General’s

guidance memo. All of that information is relevant to making a

legal determination, and our lawyers are involved in making those

determinations.

Mr. MCHENRY. The gentleman’s time has expired. Mr. Tierney of

Massachusetts is recognized for 5 minutes.

Mr. TIERNEY. Thank you, Mr. Chairman. I’m a little bit surprised

you have a hearing here where allegations of politicization are

being made in one direction, yet I look behind the chairman’s desk

and I see nothing but pure politics and nonsense up there. And I

would hope in the seriousness, or to be taken seriously as a committee the majority would begin to act that way and take that material down and approach this with the degree of seriousness to

which it probably deserves.

With that said, Ms. Callahan, I want to thank you and Mr. Fong

for your testimony. I do want to note, Mr. Chaffetz is gone, but he

39

was referring to an AP story. And I know that eventually the AP

story said they were unable to substantiate the most serious allegations made in the AP story or subsequent public comments. So just

put that in context. But I was concerned with what I thought at

one point in his testimony was that events involving the ARRA, Recovery Act. There seemed to be some indication that it had to be

sent to the White House. But I asked the staff to go back and get

the interview with the associate director of privacy, Vania Lockett,

who basically told us that at one point she thought she was advised

that all requests needed to be sent to the White House, but since

then, she was advised directly from the White House that was not

the case. Does that comport with your understanding, Ms. Callahan?

Ms. CALLAHAN. Thank you for that clarification. And that does

refresh my recollection, that indeed, that is the case, thank you.

Mr. TIERNEY. Now I note also that the Department of Homeland

Security in just last year 2010 alone received 130,000 Freedom of

Information Act requests, is that accurate?

Ms. CALLAHAN. That’s correct, sir.

Mr. TIERNEY. And about 600 of those were considered significant

enough to require additional review, is that right?

Ms. CALLAHAN. That required to be even put on the weekly report for notification purposes, sir.

Mr. TIERNEY. The inspector general did indicate that he thought

approximately 85 percent of those responses had already surpassed

statutorily mandated 20-day processing deadline before they were

submitted to the Office of the Secretary. And he also said about the

delays that the ones that were under the review process were

short, 1 to 4 days delayed. These relatively brief delays still caused

temporary withholding of certain documents that a component was

prepared to release. Do you agree with that assessment?

Ms. CALLAHAN. I do agree with that assessment, but that, of

course, was under the original awareness process that I discussed

with Representative Meehan, and therefore with have modified

that process to make it a notification-only system. So I believe we

have mitigated the inspector general’s concerns in that way.

Mr. TIERNEY. Now, I also note that when this administration

took office a couple years ago, they already had a backlog in the

Department of more than 74,000 FOIA requests; is that correct.

Ms. CALLAHAN. That is correct. The highest FOIA backlog we

had was 98,000 in fiscal year 2006. The highest in the Federal Government’s history, sir. But we’ve gotten it down to 11,000 FOIA request backlog, an amazing effort by serious and professional career

FOIA professionals throughout the Department.

Mr. TIERNEY. It strikes me in a time of fiscal austerity here that

you have to hire some 40 more full-time positions in the Freedom

of Information Act division to actually deal with this enormous

number of requests for information.

Ms. CALLAHAN. Well, sir, I believe that indicates the Department’s commitment to FOIA to increase the number of hires during

the administration by over 50 positions.

Mr. TIERNEY. I think it deals with serious—we have a lot of challenges to make here in Congress and a lot choices to make with respect to the budget and there seems to be somewhat of a commitVerDate 11-MAY-2000 11:07 Sep 14, 2011 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67719.TXT KATIE PsN: KATIE
40

ment there to take 40 full-time positions and allocate it toward

freedom of information with all of the other competing interests we

have on that.

Now the thing that strikes me is that H.R. 1, the bill put forward

by the majority this year would actually make across-the-board

cuts to the Office of Secretary, significant cuts, 9 percent. The

President was going to raise it 9 percent. H.R. 1 was going to take

that away and make more cuts. What’s that going to do to your attempts to get a transparency issue here and be more responsive to

the FOIA requests?

Ms. CALLAHAN. Sir, I believe it could significantly hinder it. I

have been able to double the size of my own FOIA staff since I’ve

been there, and the Department has shown commitment around

FOIA across the board as you notified, as you indicated, but I am

concerned that these cuts will significantly impact our FOIA processing and the FOIA officers throughout the Department discussed

that with me yesterday.

Mr. TIERNEY. Mr. Fong, do you agree with that?

Mr. FONG. I can’t speak directly to the impact it would have, but

I concur with Ms. Callahan’s judgment that any time one has to

reduce resources, there is likely to be an impact. We are trying to

make our processes at the department as efficient as possible but

there is an inevitability about such a drastic reduction as you indicated.

Mr. TIERNEY. I thank you both for your testimony.

I yield back.

Mr. MCHENRY. I thank the gentleman for yielding back.

At this point, Mr. Lankford is recognized for 5 minutes.

Mr. LANKFORD. Thank you very much, and thank you both for

being here.

The SharePoint system, as you’ve been discussing, it does sound

like a very efficient system, and that seems like that is working

well, and you’re comfortable with the process on that. I understand

how this is going to be a lot better than e-mailing documents back

and forth, uploading and be able to pick them up, and you’ll have

a chance to gather and review them there. Does that increased efficiency help in the budget area as well? Does it help with the number of staff members that are required to handle that? You’ve seen

an increase in efficiency in the communication. Does it increase efficiency anywhere else?

Ms. CALLAHAN. That’s an interesting question. I hadn’t thought

about it before, but I think that because it is a centralized system

and because the labor is actually disbursed because the component

FOIA officer will upload the information, and then my office will

just do the notification to across the Department that it probably

does make it more efficient for labor as well as for awareness.

Mr. LANKFORD. Great. You mentioned before there was a 1-day,

basically the day before front office gets it, and they can have this

uploaded before it actually gets sent out to the requester itself.

Have you had, at any moment, someone that once the notification

that has been made, there’s been a contact back saying, hang on

to that one for a minute, we need to be able to check it for other

areas or for whatever reason. Have those slowed?

41

Ms. CALLAHAN. Yes, sir. Just to clarify, the SharePoint system

started in July 2010, as I indicated. At that point, it was a 3-day

notification system. We have moved subsequently to a 1-day notification system. But since July, we have had a handful of times, including one that I caught last month that involved perhaps international equities that were inconsistently redacted.

So I looked at it. I said oh, wait a second. This needs to be reviewed and make it—to check for consistency. So I did a ‘‘reply all’’

to the list and said this needs to be checked. I instructed my director to have it reprocessed and it’s in the process of doing it.

But it’s only been a handful of times by my recollection since the

SharePoint system has started. But each time they have been, indeed, good catches and have caught information that otherwise

would have been inappropriate to disclose.

Mr. LANKFORD. So your testimony is that none of those times

that it was caught and slowed down wasn’t for a political reason

or was a hey, we need to get our story straight before this goes out

or that kind of issue?

Ms. CALLAHAN. Absolutely not.

Mr. LANKFORD. The issue you brought up several times about

catching up, which is great, to be able to catch up on, obviously a

lot of people want to request a lot of information. And it is great

to be able to start getting caught up on some of the backlog that

has been there.

The document that I had received talking about a report from

DHS, and just the annual Freedom of Information reports to the

Attorney General of the United States makes a comment about the

length of time that it takes in 2009 versus 2010. Are you familiar

with that report and some of the timing on it?

Ms. CALLAHAN. I believe I issued that report. I am not familiar

with that exact quote, but I am familiar with the report.

Mr. LANKFORD. Well, let me run a couple of things back to you.

It talks about the median number of days to grant a FOIA information request. It talked about 45 days in 2009. It is now 93 in 2010.

And in 2009, the average number of days was 74 days; in 2010, it

was 120 days. So it’s processing through whether it is the

SharePoint system is eventually coming on line, do you see a lot

of the backlog that is occurring there in the early parts of 2010.

Now it’s catching up and it’s getting better. But you had mentioned

you’re getting a lot faster on it, but based on this report it looks

like it’s slowing down somewhat.

Ms. CALLAHAN. If I can clarify a few things.

First, with regard to the awareness review, it was a very small

number of requests themselves that were impacted, so they should

have no impact at all on the processing. The number of days that

you quoted is not—that does not—that is not consistent with my

recollection of the report, so perhaps there was some numbers that

I am not familiar with.

Mr. LANKFORD. We’ll get a chance to pull this and be able to

share this with you so you can give a response back. Once you take

a look at it, if you have an opportunity to get us a written response

to say here are what the actual numbers are and that would be terrific.

Ms. CALLAHAN. I would be happy to clarify that. If——

42

Mr. LANKFORD. What is the decision on making a what is called

a significant request. I’ve heard about that a couple of times. What

is the criteria that you set saying this one’s significant?

Ms. CALLAHAN. The criteria for significant reporting, as I said,

has essentially stayed the same since 2006 and it is to essentially

be issues that will be discussed in the media so that we know they

are going on. As has been discussed several times, we receive an

extraordinary amount of FOIAs each year, but there are only a

handful of those that we would want to know that oh, this has

been filed, incidentally this is going on.

That weekly report is sent to the front office but it’s also sent to

all of the FOIA’s officers so that they too can see that oh, by the

way, this component got the same request as another component,

so it’s for awareness purposes on essentially sensitive topics, priorities and litigation.

Mr. LANKFORD. If a private citizen made that and then handed

it over to the media, that may or may not rise up. Some of it is

the requester itself, or some is it the topic?

Ms. CALLAHAN. It’s the topic. It’s the topic that would be of interest, but of course, if the media’s requested it, then we assume that

is a topic of media interest so that would—the media is a default

usually to be included just for notification purposes, that this request has been made.

Mr. LANKFORD. Great. Thanks very much.

Mr. MCHENRY. The gentleman’s time has expired. At this point,

we will recognize Mr. Welch for 5 minutes. You arrived at the correct time, my friend.

Mr. WELCH. Thank you.

You know, this question of transparency is an important one, but

my understanding is that you get overwhelmed with requests, and

your position is that you are transparent, you’re doing your job the

best you can; is that right?

Ms. CALLAHAN. That is correct, sir. I try.

Mr. WELCH. Just to elaborate just I want to give you an opportunity to explain why you believe you are meeting that standard,

which is one we share, in what you have been doing, and what

your specific response is to some of the assertions that have been

made about your failure to do that.

Ms. CALLAHAN. Thank you, sir.

As we’ve discussed previously, the Department and the FOIA

professionals therein have made Herculean efforts to get the FOIA

backlog down from its high of 98,000 to 74,000 when I started to

11,000 FOIA backlog. They are under amazing pressure and they

do amazing work all the time. In addition to reducing the backlog,

in addition to providing the service——

Mr. WELCH. I am going to interrupt you for a minute, because

I actually—here’s what would be helpful, I think, for us and for

you, is to explain all right the backlog was X and now it’s X minus.

The number of requests was X and now it’s 2X and you’ve reduced

it by whatever. But the more specific you can be, the better, because I think all of us really respect and appreciate the hard work

that you and your fellow workers are doing. So the more concrete

you can be with us I think the more helpful it is for the whole committee to be able to come to the right conclusion here.

43

Ms. CALLAHAN. Absolutely, sir. As I indicated in fiscal year 2009,

we had a FOIA backlog of 74,000 FOIA requests. That has been reduced to—that has been reduced 84 percent in the past 2 years to

an 11,383 FOIA backlog requests. In addition, we have received

102,000 FOIA requests last year while processing—this is fiscal

year 2009—while processing 160,000 FOIA requests. That work is

primarily the work of the U.S. Citizenship and Immigration Services in addressing and being more efficient and more transparent

and getting their alien files processing out. The U.S. Citizenship

and Immigration Services accounts for 70 percent of FOIAs that

are processed in the Department. They alone receive between 8,000

and 10,000 FOIA requests each month, and have been able,

through commitment, by the USCIS to be able to reduce that.

Mr. WELCH. Let me ask you this: There are some allegations in

the majority’s report, new era of openness that the front office of

DHS was interfering with FOIA requests by correcting errors with

outgoing FOIA responses. Obviously, a somewhat troublesome assertion. And I want to give you an opportunity to tell the committee exactly what type of specific errors did the front office review,

help to correct?

Ms. CALLAHAN. So as I’ve described previously and as detailed in

my testimony, the front office reviewed both the cover letter as well

as the underlying FOIA response. They did not make any changes

to the FOIA responses, but they did identify several times where

there were typographical errors and other elements that were not

consistent with professionalism standards that I would like. And

they have caught those in their overall awareness review of the

documents.

Mr. WELCH. OK. And then according to the inspector general’s

report on page 12, the IG provided that in response to allegations

by the AP of a ‘‘political filter being applied to FOIA responses at

DHS,’’ the IG stated we were not able to substantiate the most serious allegations made by the AP story or subsequent public comments. However, we’ve determined the review process led to inefficiencies and slower processing of certain FOIA responses.

Based on that finding, what were some of the inefficiencies that

you observed and what steps were taken by DHS management, including your front office, general counsel’s office, and your office to

reduce any of these inefficiencies and has the response time improved?

Ms. CALLAHAN. Absolutely, sir. We take these issues quite seriously. We had identified these problems ourselves and have selfcorrected it. The initial original awareness process was done via email, and it was a relatively cumbersome process. As soon as we

had a technology solution where we could provide an Internetbased system where everyone could access, we moved from the email system to the Internet-based system, and that process has

been much more efficient, and I believe is actually right now a

leader in the Federal Government.

Mr. WELCH. Thank you. I yield back.

Chairman ISSA. The gentleman from North Carolina, Mr.

McHenry.

Mr. MCHENRY. Thank you.

44

I wanted to point out to my colleague, Mr. Tierney, he questioned

the posters behind the chair’s dais. And he says—questioned why

there are political statements on the back wall. If the gentleman

actually read the briefing document, he would know that political

statement is actually the title of the hearing.

I just wanted to point that out so folks who obviously are in the

audience have looked at the title of the hearing and see it on the

wall, and that is not a coincidence, although some of my colleagues

may think it is.

With that, I would be happy to yield the balance of my time to

Mr. Gowdy.

Mr. GOWDY. I thank the gentleman from North Carolina.

Ms. Callahan, what’s the purpose of FOIA?

Ms. CALLAHAN. The purpose of FOIA is, of course, to inform the

public of the workings of the Federal Government.

Mr. GOWDY. What are the elements that you would apply just determining whether or not something were discoverable or not?

Ms. CALLAHAN. Discoverable is not quite the right term.

Mr. GOWDY. Well, you know what I mean.

Ms. CALLAHAN. No, that’s OK. I used to be a lawyer.

Mr. GOWDY. Me, too. But whether or not it should be produced?

Ms. CALLAHAN. Well, as Mr. Fong has indicated, this administration has applies the presumption of disclosure unlike the previous

administration.

Mr. GOWDY. I was not asking for a political comment. I am simply asking for the elements that you apply to determine whether

not, which administration is better than another, the legal elements that you apply in determining whether or not you should

turn something over.

Ms. CALLAHAN. FOIA applies to all Federal records, and we seek

to find all responsive records. And we look at those Federal records,

presume that Federal records should be disclosed, but look in case

that there are specific exemptions. There are nine discreet exemptions that may need to be applied to documents or elements of the

documents.

Mr. GOWDY. So it should be turned over unless there is an exemption?

Ms. CALLAHAN. Yes, sir.

Mr. GOWDY. OK. Then why would the employment of the person

seeking the record matter?

Ms. CALLAHAN. It doesn’t matter at all.

Mr. GOWDY. Why would that have been part of the calculus that

was used?

Ms. CALLAHAN. Sir, it was not part of the calculus that was used.

The weekly report that summarizes anything that may be of media

interest——

Mr. GOWDY. How do we know it wasn’t part of the calculus that

was used?

Ms. CALLAHAN. I believe the inspector general’s report actually

indicates that political calculations were not part of the process.

Mr. GOWDY. I am not even getting to political calculations yet.

I’m just asking about residency and employment. What does it matter whether or not someone is a private person or whether they’re

a reporter?

45

Ms. CALLAHAN. It does not matter at all in terms of FOIA requests.

Mr. GOWDY. Can you be both?

Ms. CALLAHAN. Yes.

Mr. GOWDY. So why would you track that information?

Ms. CALLAHAN. It is only summarized because it may become

part of media interest or attention.

Mr. GOWDY. Why? Why keep whether or not it is a private citizen that’s requesting the information or reporter?

Ms. CALLAHAN. So it’s actually a requirement to disclose who has

requested—it is a requirement in the Freedom of Information Act

to disclose FOIA logs, actually say the name of the person who’s

requesting it unless it’s a Privacy Act request. That is disclosed.

Mr. GOWDY. And the employment of the person is disclosed as

well?

Ms. CALLAHAN. That is not disclosed usually but sometimes the

media affiliation may be part of the FOIA log, and we have our

FOIA logs posted on our Web site.

Mr. GOWDY. What about the political affiliation of the person requesting it? Why is that part of the calculus?

Ms. CALLAHAN. It is not part of the calculus at all, sir.

Mr. GOWDY. You don’t track whether it’s a Republican or Democrat that requests the information?

Ms. CALLAHAN. As I indicated earlier, under the FOIA we’ve only

gotten one FOIA request from a Member of Congress during my

tenure.

Chairman ISSA. Would the gentleman yield?

Mr. GOWDY. Yes, sir.

Chairman ISSA. You said, though, that when Senator Grassley,

when his had gone through the whole process, it was ripe, it was

delivered to the political review system in the Office of the Secretary that you took care of his request through other fashion.

Ms. CALLAHAN. No, I am sorry if that’s what you had interpreted.

Chairman ISSA. No. That’s what you said. You said that, in fact,

you took care of Senator Grassley’s request through another system, but of course, you didn’t know about it until you were informed that a Republican Senator had a FOIA request that was

ready to go out.

Ms. CALLAHAN. No, sir. It wasn’t ready to go out. It was the initial incoming. So the weekly report summarizes the incoming requests that come in, so they are just summarizing what the request

is. So Senator Grassley may or may not have been on the weekly

report, but as I said, we never processed his response. So pursuant

to FOIA, we addressed through other means.

Chairman Issa. OK so I apologize. I yield back.

Ms. CALLAHAN. That’s OK.

Chairman ISSA. It’s clear that you take care of politicians differently in the one case but go ahead.

Mr. GOWDY. So this statement, if a Member of Congress sought

documents, employees were told to specify Democrat or Republican,

that is an inaccurate comment?

Ms. CALLAHAN. According to our weekly report elements, we are

supposed to indicate which is the Democrat. But as I said—which

is a Republican, which is a Democrat, but it hasn’t happened.

46

Mr. GOWDY. Why? Why?

Ms. CALLAHAN. I think that’s the way you guys are usually addressed. I don’t know why it was a recommendation by my career

staff to add that into the standards from 2006 so the standards

from 2006 were modified slightly based off of career FOIA recommendations.

Mr. GOWDY. Mr. McHenry, Mr. Chairman, therefore, my time

has expired.

Chairman ISSA. I thank the gentleman. We now recognize the

distinguished gentleman from Illinois, Mr. Davis.

Mr. DAVIS. I pass.

Chairman ISSA. I apologize.

We will next go to the gentleman, the distinguished but junior

gentleman from Mr. Virginia, Mr. Connolly.

Mr. CONNOLLY. Thank you, Mr. Chairman, and since I celebrated

a birthday yesterday, I particularly appreciate the ‘‘junior.’’

And thank you both for being here today.

I am not quite sure of frankly why we’re here today because correct me if I am wrong, either Mr. Fong or Ms. Callahan, but I

thought the inspector general’s report found that actually there

was a lot more transparency at DHS in this administration than

in the previous administration. Is that true?

Ms. CALLAHAN. I believe that is indeed one of the conclusions by

the inspector general. One of the things that my office established

in August 2009 is a policy of proactive disclosure to attempt to put

up the frequently requested documents, to put up elements that

may be part—people may want to seek, for example, FOIA logs. I

know that the chairman sought FOIA logs for several departments.

We put our FOIA logs up for the entire department for 2009, 2010

and now we’ve just updated it to 2011.

Mr. CONNOLLY. Thank you. And which, by the way, at least

speaking for this Member, I continue to find the signs behind the

chairman and ranking member offensive and propagandist. And

one of these signs is framed, of course, in the most biased way. It’s

not an intellectually honest question. It is why doesn’t DHS deliver

on the President’s transparency promises.

And in fact, what you just said, your testimony, Ms. Callahan,

and the report of the inspector general suggest the answer to that

question. He did. Would that the previous administration had been

so transparent, and would that this committee, especially some on

the other side of the aisle, had been equally as concerned about

transparency and backlog and politicization at DHS under the

Bush administration.

Now, backlog. What was the backlog? How high did it reach, and

was it true that the backlog of FOIA requests under the previous

administration hit 98,000 at one point?

Ms. CALLAHAN. That is correct.

Mr. CONNOLLY. And by the time that administration left office,

it was down to 74,000?

Ms. CALLAHAN. That is correct.

Mr. CONNOLLY. What is it now?

Ms. CALLAHAN. Eleven thousand.

Mr. CONNOLLY. Eleven thousand. So it’s one-ninth of its height

under the previous administration; is that correct?

47

Ms. CALLAHAN. Yes, sir.

Mr. CONNOLLY. The idea of politicization showing, horrors, that

somebody’s political affiliation from Congress, when did that practice begin?

Ms. CALLAHAN. Sir, it was a recommendation from my career

FOIA staff to add it. But I don’t think it’s material because as I

indicated, we don’t usually receive FOIA requests from Members of

Congress.

Mr. CONNOLLY. That is correct.

And in terms of notifying political leadership, if that’s what you

can call it, namely the non-career political appointees, the leadership picked by the President often confirmed by the Senate, notifying them just of the status of FOIAs requests, again, horrors, when

did that practice begin?

Ms. CALLAHAN. In terms of notifying that responses went out,

that actually has been a longstanding process.

Mr. CONNOLLY. In other words, it began in the previous administration?

Ms. CALLAHAN. The awareness review and having a systematic

process actually started in this administration, sir.

Mr. CONNOLLY. This administration?

Ms. CALLAHAN. It did start in this administration and I believe

we have a now state-of-the-art solution to it.

Mr. CONNOLLY. You know, I was the chairman of Fairfax County

one of the largest counties in the United States before I came here.

And Virginia actually has one of the most open sunshine laws and

vigorous FOIA laws, at least at the local level of government in the

United States. E-mails, phone logs, any correspondence, all memos

are subject to FOIA and very strict time lines in terms of getting

FOIA requests fulfilled by the media or others.

Now I was chairman of the county, and it was absolutely routine

practice that our legal counsel’s office would notify the political

leadership of pending requests so that we weren’t caught surprised.

I find it shocking that some of my colleagues apparently think

that’s an untoward development. I think personally, that’s responsible management. Just to make sure that they’re aware of it.

Is there any evidence, though, and maybe this is the nature of

their concern of political interference once made aware in responding to FOIA requests?

Ms. CALLAHAN. No, sir. I have no knowledge of any political interference with regard to the awareness review and I believe the

inspector general made the same conclusion in his report.

Mr. CONNOLLY. Thank you. Mr. Fong, are you aware of such political interference?

Mr. FONG. I agree that the inspector general’s report which took

a close look at this issue did not find any evidence of improper political interference.

Mr. CONNOLLY. Would it be fair in your assessment, Mr. Fong,

looking at the backlog progress and looking at the policies regarding transparency and the lack of political interference, one could

conclude that as a matter of fact the transparency of DHS in this

administration has significantly improved over the previous?

Mr. FONG. I think that’s a fair statement.

48

Mr. CONNOLLY. Thank you. So we’ve answered that question behind the chairman’s head.

I would yield back.

Chairman ISSA. The chair recognizes the distinguished gentleman from South Carolina, Mr. Gowdy.

Mr. GOWDY. Ms. Callahan, if I can summarize this.

There is a presumption in favor of disclosure. There are exemptions which you may avail yourself to. You do not believe there’s

been any political interference. Would you concede that slow walking or taking your time in complying with an otherwise legitimate

FOIA request could be interference?

Ms. CALLAHAN. There are many steps to FOIA processing that

could create delays.

Mr. GOWDY. Including slow walking something, taking your time

in reviewing it and deciding when to disclose it.

Ms. CALLAHAN. I hope that wouldn’t have happened, but that

could be one of the many possibilities of delay for FOIA.

Mr. GOWDY. And that would constitute, you would concede, interference.

Ms. CALLAHAN. Our FOIA professionals take their responsibilities quite seriously.

Mr. GOWDY. That was not my question. My question is even simpler than that. Is slow walking or delaying the disclosure of information interference?

Ms. CALLAHAN. It is delay, yes.

Mr. GOWDY. What about an overuse of exemptions in the redaction process?

Ms. CALLAHAN. That is also something that would give me pause.

The inspector general’s report raises an issue that I had not previously identified, which is that the Department has been using the

exemption B5 perhaps more—it has been using it increasingly

throughout the past several years starting in 2006.

Mr. GOWDY. Perhaps. You used ‘‘perhaps.’’

Ms. CALLAHAN. It has been increasing since 2006.

Mr. GOWDY. Where in B5 do you find an exclusion or exemption

for the phrase, ‘‘this is bananas?’’

Ms. CALLAHAN. Sir, I would be happy to defer to my legal colleague, but B5 is for predecisional and deliberative material.

Mr. GOWDY. Can you see any way where a B5 exemption would

apply to an e-mail that said, This is bananas?

Ms. CALLAHAN. I think we would have to look at the context, sir.

Chairman ISSA. Would the gentleman suspend?

Mr. GOWDY. Yes, sir.

Chairman ISSA. We provided documents to you, and I would ask

that the gentlelady be given an opportunity to review the document

that you’re asking and then we will restart. Thank you.

Mr. GOWDY. Yes, sir.

Ms. CALLAHAN. Do you know where in the package it is? I’m

sorry.

Chairman ISSA. Slide 3, I’m told.

Ms. CALLAHAN. I don’t have slides here, sir. I am sorry.

Chairman ISSA. Take care of making sure they have them.

Ms. CALLAHAN. And Congressman, if the question is about the

FOIA production, this looks like this is the FOIA production to the

49

Associated Press. As I indicated to the chairman, my office did not

process this request. Under typical process, typical standards, we

were recused from the processing and the Office of General Counsel

made the determinations in this specific FOIA.

Mr. GOWDY. Well, I can still ask you, right? You’re still an expert

in FOIA. Can you possibly find a B5 exemption for the phrase,

‘‘This is bananas?’’

Ms. CALLAHAN. Part of the purpose of B5 is to have a vigorous

and dialog debate and a reasonable dialog and perhaps it was the

determination of the Office of the General Counsel that was part

of the deliberative process rather than a final decision. But as I

said, I wasn’t involved in this redaction.

Mr. GOWDY. What about, Nope, they entirely change our response. Spoke with Jordan, and he is going to confer with OGC.

Would that be a B5 exemption?

Ms. CALLAHAN. Sir, that also is part of the FOIA request from

the Associated Press. I was not part of the process, but I do know

the underlying facts in this circumstance. The Office of the Secretary had initially made some recommendations to modify our

boilerplate FOIA responses, to make them more streamlined, and

they did not understand that indeed, several of the paragraphs

were required by law. And therefore, after consulting with the Office of the General Counsel, we decided to use the same standards

so therefore, that was indeed a predecisional document because we

did not make the changes that were recommended by the Office of

the Secretary. So in that case, again, I did not make the determination, but my opinion the exemption would be appropriate.

Mr. GOWDY. You do think a B5 exemption would be appropriate

for the phrase, ‘‘They entirely change our response. Spoke with Jordan and he is going to confer with OGC?’’

Ms. CALLAHAN. In this factual circumstance, that’s because they

did not—the response indeed was not changed.

Mr. GOWDY. Well, for those that may not be familiar, what is the

process if you are redacting an impermissible way, who gets to review that?

Ms. CALLAHAN. Well——

Mr. GOWDY. How do we know what we don’t know. If you are redacting something, who gets to decide if the redaction was appropriate or not?

Ms. CALLAHAN. As in my written testimony, I detailed the entire

FOIA process, including the possibility of consulting with counsel.

And then once the requester receives the response, they have several alternative appeal options and administrative appeal, and also

going to court.

Mr. GOWDY. I can’t see edits. Are they useful? Now why would

that be a B5 exemption.

Ms. CALLAHAN. I am sorry sir, again, I am concerned about the

overuse of B5 in this Department. Mr. Fong and I have discussed

it and we’re going to look at a systemic solution to the issues that

the Inspector General raised with regards to B5.

Mr. GOWDY. ‘‘We know it was coming. They are trying to substantially edit our letters.’’ Why is that a B5 exemption?

50

Ms. CALLAHAN. Sir, again, I do not have knowledge of the FOIA

processing for this element so I am sorry I won’t be able to continue to answer these questions.

Mr. GOWDY. Would you agree with me that’s not an appropriate

use for the B5 exemption?

Ms. CALLAHAN. Again, sir, this was not my processing.

Chairman ISSA. The gentleman’s time has expired.

Now we go to the distinguished gentleman from Illinois for 5

minutes.

Mr. DAVIS. Thank you very much, Mr. Chairman, and you know,

since I sit next to the other gentleman from Illinois, I just wasn’t

certain.

But so since both Ms. Callahan and Mr. Fong have testified neither are aware of any political interference in respondent to FOIA

requests, I am going to yield the balance of my time to the ranking

member, Mr. Cummings.

Mr. CUMMINGS. I thank the gentleman for yielding.

Ms. Callahan, I want you to—one of the—first of all, I think you

admit, and the IG will agree, that the system, things are not perfect. By the way, none of our offices are perfect. We’ve got great

people, but they’re not perfect.

And I am concerned about this. You know as the IG was concerned, he said his recommendation No. 5, it says to recommend

the Secretary—that the Secretary issue written guidance to the Department on the President’s reiteration and embarrassment and

extract fears and exposure of failure are not grounds to examine

the information under FOIA. And you just said that you and Mr.

Fong were working on addressing the issue of exemption number

5.

Tell me what you are planning to do. I mean, what do you see?

You expressed concerns. You said you’re trying to do some things.

How do you address that? Because one of my colleagues on the

other side said how do we go forward now and I’ve got to tell you,

when you said that you all had reduced by 90 percent, the backlog—80 percent, whatever, let me tell you something, that’s phenomenal.

Now, but we want to do even better. This President has said he

wants to do better and I want you to address that issue.

Ms. CALLAHAN. Sir, I want to do better as well. And one way

with regard to this identification of B5 using in the Department,

as I said, I had not identified this as a systemic problem until the

inspector general brought it to my attention. Mr. Fong and I have

not had a chance to do a thorough plan, but I think it obviously

is going to look at the specific elements of B5, how it’s being applied, and also obviously, training and materials and education will

help to make sure that when exemption B5 is being used, it is

being used appropriately. And it should not be used for embarrassment purposes and so on. So I completely concur with that.

Mr. CUMMINGS. How long have you been in your position, Ms.

Callahan?

Ms. CALLAHAN. Two years, sir.

Mr. CUMMINGS. Were you in the Department before that?

Ms. CALLAHAN. No, sir. I was in the private sector.

51

Mr. CUMMINGS. Well, let me ask you this: You referred back to

2006. You referred back to 2006 two or three times. And I was just

looking at some guidelines, FOIA sections of DHS cabinet report to

the White House, dated August 4, 2006, and it talks about, it says

select FOIA requests for submission in one of the following criteria.

Under that it says one is the FOIA request is for congressional correspondence, the FOIA request is from a Member of Congress, the

FOIA request is from a member of the media. Has that—so that’s

been a policy since 2006?

Ms. CALLAHAN. Without change, yes, sir.

Mr. CUMMINGS. And when you came in and you’re trying to do

this more transparency have an effort to make things more transparent, I take it you go back and review these kinds of things so

you know what the guidelines are?

Ms. CALLAHAN. I did, sir. And I relied heavily on my career FOIA

professionals with this regard. We looked at the 2006 guidance. Decided to issue it as a memorandum from me to show its importance, but also added some ministerial and formatting elements to

it to be quite frankly more professional and consistent with how we

refer to things. But the substance of the submission guidelines

have not changed since 2006.

Mr. CUMMINGS. So in other words, there was nothing between

2006 and when you came in?

Ms. CALLAHAN. Yes, sir. That is correct.

Mr. CUMMINGS. So that’s what you had to go back to?

Ms. CALLAHAN. Yes, sir.

Mr. CUMMINGS. So is it safe to say that during the latter, I guess,

the Bush years, President Bush’s years, 2006 through 2008, that

these were the guidelines; is that right?

Ms. CALLAHAN. That is correct, sir. And they remain essentially

the guidelines today.

Mr. CUMMINGS. I see.

Now, Mr. Fong, the attorney, the IG made some complaints

about your department such as Department’s commitment to producing documents is in question. DHS assertions about resources

dedicated to complying with document productions are suspect.

Made a number of allegations. And since you are not going to be

here to answer those, but you are familiar with them, I think it

would benefit the entire committee for us to know what your responses are to those because they were rather serious.

Mr. FONG. To clarify, you may have inadvertently referred to the

inspector general.

Mr. CUMMINGS. I meant the inspector general.

Mr. FONG. You meant the——

Chairman ISSA. I ask the gentleman have an additional 1

minute.

Mr. CUMMINGS. Talking about the Republican staff report. I’m

sorry.

Mr. FONG. Yes, thank you for giving me an opportunity to respond.

I have not had an opportunity to read the entire report in depth,

but I did carefully review the allegations made concerning attorneys in my office, including career attorneys who have worked

there with great success for some time. I confess that when I first

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saw the section heading, my initial reaction was one of concern because as you indicate, they make very serious allegations about

lawyers I know well. And I take very seriously, as I should, any

allegation of wrongdoing by my staff.

Upon further examination of the portion of the report dealing

with the OGC lawyers, however, my concern, frankly turned into

indignation because I believe the report paints an unfair, and if I

may say, an irresponsible portrait of certain people and events. The

report reads more like an advocacy piece rather than a sober substantive, dispassionate, investigative report. In that sense, the portion of the report that focuses on the Office of the General Counsel

is quite unlike the inspector general’s report, which resulted from

a serious fact-finding effort and makes six constructive recommendations, all of which the Department has concurred with.

Chairman ISSA. Thank you. We’ve gone 2 minutes past. I think

he’s fully answered his opinion. We now go to the gentleman from

Michigan, Mr. Walberg, for 5 minutes.

Mr. WALBERG. Thank you, Mr. Chairman.

Ms. Callahan, in your written testimony, and I hope I am not

going back over a question that I missed while I was out in another

committee for a brief period of time, but in your written testimony,

you state that 2 years ago, the Department faced a backlog of more

than 74,000 FOIA requests. Under this administration, you go on

to state, we reduced the backlog by 84 percent or more than 63,000

requests.

In his interview with the committee, William Huzerland, a member of your staff, pointed out that about 30,000 records were transferred to the Department of State. According to Mr. Huzerland,

‘‘Literally boxes on pallets were dumped on the State Department

when we had done our portion of the processing.’’

Do you feel that it’s fair to take credit for backlog reductions that

have simply been transferred to another agency and the records remain in the Federal Government?

Ms. CALLAHAN. If I can clarify exactly what that process is. I am

familiar with incident.

As I had testified earlier, the U.S. Citizenship and Immigration

Services has done an amazing job of processing their files. They receive between 8,000 and 10,000 FOIA requests a month for primarily immigration files and alien files. Under FOIA, each department processes their own records, so once USCIS had finished

processing the DHS documents, or the USCIS documents, they

then go through a process that is typical in the Federal Government of referral.

So because the USCIS was so successful in getting their backlog

down in fiscal year 2009, and for that I commend them, unfortunately the Department of State was the beneficiary of that, because

in some of those records, there were not only DHS documents, but

also Department of State documents. We are attempting to—that

is, I think a one-time circumstance because of CIS’s success in getting the backlog down.

One way we could mitigate this is for CIS to sign a memorandum

of understanding with the Department of State to process the Department of State documents, and I believe that’s in discussion.

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Mr. WALBERG. But again, this backlog wasn’t reduced by your

Department, by your office?

Ms. CALLAHAN. No. It’s been reduced throughout the Department

by all the FOIA professionals, the 420 FOIA professionals that

work hard every day.

Mr. WALBERG. That may be the case. But the credit seems to be

at a different spot in addition. According to a recent AP report, a

significant portion of the reductions achieved across DHS was a result of a Federal contract signed under the previous administration, the Bush administration, in light of the fact that a private

company completed this work under contract signed during the

previous administration, is it not, somewhat disingenuous for you

to credit these reductions to this administration?

Ms. CALLAHAN. The reductions are the reductions, and as I indicated, USCIS has made an incredible effort, and they have done so

in coordination with contracts, and that is certainly the case. And

I applaud them for applying such a significant priority to getting

that backlog down. They have done an amazing effort.

Mr. WALBERG. Credit where credit is due.

Ms. CALLAHAN. Yes, sir.

Mr. WALBERG. And politics where politics is due.

Let me ask another question here.

During their interviews, your FOIA officer stated that the front

office approval was needed before they could release FOIA responses. Your deputy chief FOIA officer testified, and I quote, they,

front office were, well, reviewing and then approving, yeah, absolutely because if we couldn’t send something out the door until they

gave the thumbs up, that’s approval. Do you disagree that approval

policy was, in fact, in place?

Ms. CALLAHAN. The original part of the awareness process was

indeed an affirmative acknowledgment of that they have received

the FOIA and that they had reviewed the FOIA. That had management challenges. I have admitted that, and I believe that we attempted to mitigate that immediately. We have now moved to a

system which is a notification system, and I believe it is much

more efficient.

Chairman ISSA. Would the gentleman yield?

Mr. WALBERG. I yield.

Chairman ISSA. So just to review.

You took credit for a big reduction that $7.6 million worth of

Bush-era money paid for a contract and reduced it. You took credit

for 30,000 records that were transferred to another workload of

other people. Now, you have some really hardworking people, and

I appreciate that. But how do those people feel about the day after

our whistleblower and others giving testimony, the whistleblower

gets taken out of her office, moved to an inferior office, inferior

title, and has her job narrowed in scope, and then, quite frankly,

I am told she’s now on a basically health leave.

I am listening to all of this and I’m saying, isn’t that the most

chilling effect anyone could ever have to see that if you tell the

truth to Congress, the next day your job is reduced and your office

is changed, and it’s not called a demotion but it sure as hell looks

like one?

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Ms. CALLAHAN. Sir, there are several elements of the process

that I cannot speak to here. But I am happy to have a nonpublic

briefing about certain personnel issues.

Chairman ISSA. My time is expired. We don’t do nonpublic issues

when a whistleblower is penalized, and hundreds of hardworking

people see the effect of testifying honestly under oath before Congress. My time has expired.

I yield back.

Does the ranking member request a second round.

OK. We’ll have a second round. And I’ll begin.

Mr. Fong, basically Ms. Callahan has said she was recused in the

process. But you were not recused. Your department was not

recused. You’re a political appointee. Many of the people in your

department are political appointees. And the general counsel’s office regularly does redacting, including 5B, isn’t that true?

Mr. FONG. I am not familiar with the specifics of the process.

Chairman ISSA. I will make it simpler. You’re a political appointee, right?

Mr. FONG. Correct.

Chairman ISSA. Other people in your department are political appointees?

Mr. FONG. A few.

Chairman ISSA. Your department does redacting. That’s already

been testified to.

Mr. FONG. The Department does.

Chairman ISSA. The general counsel’s office.

Mr. FONG. We may adjudicate or interpret the statute.

Chairman ISSA. You add things which get black lines over them;

isn’t that true?

Mr. FONG. We provide legal advice to determinations made by

the Office of Privacy.

Chairman ISSA. OK. So in the case of the AP’s fairly sensitive request, constitutional, first amendment in addition to FOIA, they, in

fact, found you doing the redaction of the material delivery. Your

office headed by a political appointee, did the actual redactions that

are being talked about here today. Isn’t that true. Your office. People under your control? Yes or no is all we need to know.

Mr. FONG. No.

Chairman ISSA. OK. Who did the redactions that we’re talking

about here today that Ms. Callahan is saying she was recused

from, but we’re seeing some pretty absurd redactions here. Who did

them?

Mr. FONG. I do not know who made the specific redactions. I do

know that a senior career lawyer was involved in giving legal advice to those who made the redactions. I can’t speak to the specifics.

Chairman ISSA. I am going to ask kind of a closing question on

this subject.

The President said, and was unambiguous on his first day in office that he wanted to err on the side of disclosure. If you had a

recused department on a particular request, the AP request, why

wouldn’t it have been appropriate to meet the spirit of the President’s own words to simply say to the FOIA career professionals,

we’re not going to second guess this one. We’ll err on the side of

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openness. You do what you think is right. You deliver it, and we

won’t have it further reviewed by those in your office and others

that might have suggested further redactions, some of which look

like covering up embarrassments, or if you will, deliberative coverup conversation.

The meaning of these items which we are releasing today, it’s a

very small part of the discovery, have never been given to the Associated Press. They’ve been denied the Associated Press for 9

months. Why is it it wouldn’t have been appropriate in either one

of your answers, yes, or no, to have erred on the side as the President said, and had the career professionals do it and take your

chances that maybe just once something would get out that

wouldn’t be perfect, even though it was done by the career professionals.

Mr. FONG. Mr. Chairman, it would not have been appropriate because the President’s memorandum did not say to ignore the law.

The law includes exemptions. We are duty bound.

Chairman ISSA. OK. I’ve heard enough of a political appointee

who interfered clearly with career professionals. We have a whistleblower who your organization has punished that was part of an

overall disclosure that we have become aware of. Let me just close

because my time too is limited.

We’re not done with this. The minority may think that this is not

right. Our expectation is from this day forward, we want the rest

of the documents that were requested. We want to see them all.

Additionally, I am putting you on notice that as we view the AP

request which is 9 months delayed, they have not had their day in

court to get some of the things that we’re seeing here today. We’re

going to have additional hearings so that we fully understand, line

item by line item, each redaction that they’re waiting to see 9

months later and haven’t seen.

So I would ask, quite frankly, that you do what you need to do

to ensure that we don’t have another hearing. Make an expeditious

decision on this appeal. You know, 9 months with the Associated

Press to want to know about something that in your own words

have led to changes, material changes in how you do business in

the FOIA section. And 9 months later, the AP is still waiting on

responses to these. And the only answer we got here today is well,

I didn’t review them, I was recused. I didn’t actually work on it,

but we can’t actually explain why ‘‘it’s bananas’’ in fact gets redacted.

That’s something the American people, they expect every day

that the press asks and the press gets answered. And if FOIA statute is unambiguous that, in fact, it’s only through narrow exemptions. And if those exemptions have been abused once and it’s deliberate, then they have been abused.

With that, I yield to the ranking member.

Mr. CUMMINGS. Thank you very much.

Mr. Fong, as a lawyer, and I used to represent lawyers when

they got in trouble. And I know that license to practice law is very,

very important. And we are held to a very high standard as officers

of the court, and I could—when I asked you about the allegations

in the report, I could tell that you got a little bit emotional, and

probably you share what I share. I know the feeling.

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I want to give you a chance to respond to some of these allegations, because there’s something that while the chairman, and

rightfully so, is concerned about people demoted, I’m concerned

about that, too, but I am also concerned about people’s reputations.

And lawyers, you know, we have a high standard to set. You started talking about the lawyers in your office. There have been allegations that have been made that could possibly lead down the road

to some serious problems for those lawyers.

So I want you to respond. And by the way, most of the lawyers

I would guess could be making a lot more money if they were in

private practice or doing something other than government work.

But they’re dedicated employees and I refuse to allow them to just

be under a blanket of negative allegations to be placed upon them

without at least or giving you a chance to respond.

Mr. FONG. Thank you very much, Congressman, for giving me

this opportunity to supplement my answer to your earlier question.

It is, as you indicate, truly unfortunate that the attorneys who

are the subject of the majority report are, in fact, career attorneys,

a line attorney in one instance and a senior attorney for the Department to have their names dragged into a public report simply

for performing their duties as attorneys for the U.S. Department of

Homeland Security.

I’ve reviewed their performance in representing the agency in

this investigation, and continue to do so. I have not found any indication of unethical activity or improper practice of law. The DHS

attorneys I know are hardworking dedicated professionals. The report has some salacious headlines, but this report simply does not

describe the attorneys I know and work with.

I also want to underscore that I believe we have fully cooperated

and acted in good faith with respect to this investigation.

I thank you for this opportunity to respond.

Mr. CUMMINGS. Ms. Callahan, I would like to give you the opportunity to finish what you were saying, again, again, chairman talks

about fairness, talks about people’s reputations, talks about the

motions. But there have been some serious allegations made here.

And I don’t know what the truth is to be honest with you. But I’d

like for you to at least be able to answer the question.

Ms. CALLAHAN. Yes, thank you very much, sir.

Catherine Papoi remains in the same position that she’s held in

this office, director disclosure in FOIA, and in fact, she competed

for a promotion, a new SES position that I was given by the Department demonstrating the importance of FOIA by this Department. The competition was open. It was a laborious and detailed

process involving several different career SES panels. Ms. Papoi

was not selected, and that was confirmed by the Office of Personnel

Management.

Mr. CUMMINGS. When was that decision was made?

Ms. CALLAHAN. The initial selection of the proposed new SES

was December 14–17, 2010.

Ms. Papoi was informed that she was to—had not received the

promotion on January 10, 2011, and then we were working on onboarding the new SES. That process takes a while. It goes through

security. The new SES cleared security on February 24th, but was

not released from her department until officially March 2nd.

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On March 2nd, we received notification that her department had

released her. That’s required in order to have her move on. And we

were informed by the Office of the Chief Human Capitol Officer

that, indeed, her first start date would be March 14th. We then

took the first opportunity we attempted to notify Ms. Papoi on

March 4th, which would have been the day after her testimony, but

it was in order to give her notice that this was happening. She certainly was aware that the new SES was coming on board. She did

not know the date certain. So we were attempting to tell her with

as much time as possible so that she could move offices.

The office moves are comparable offices. I had made the decision

to have the new SES closer to me because now the new SES is one

of the two people who report to me directly.

Mr. CUMMINGS. Thank you.

Chairman ISSA. I thank the gentleman.

We will take a 5-minute recess to set up for the second panel.

I am sorry. Mr. Walberg, did you want a second round? I apologize.

We will recognize the gentleman.

Mr. WALBERG. I did, and I appreciate the opportunity.

Chairman ISSA. And you do.

Mr. WALBERG. And I get it, right?

Moving from Ms. Papoi, I want to go to exhibit 7, if we could

have that shown. In this e-mail to Amy Shlossman, the deputy

chief of staff, you explain why the FOIA office must repeat the requester’s language verbatim to minimize legal liability. Amy

Shlossman responds by saying or writing legally we have to repeat

allegations in FOIAs. Can we get a read on that prior to tomorrow,

the meeting tomorrow? What does Shlossman mean ‘‘can we get a

read?’’

Ms. CALLAHAN. I am not sure. I believe she’s addressing two people. I was not copied on this portion of the e-mail.

Mr. WALBERG. But you responded to it.

Ms. CALLAHAN. No, sir. I believe I was the original e-mail and

then she forwarded it on to two colleagues asking for their response.

Mr. WALBERG. What do you think she might mean by can we get

a read?

Ms. CALLAHAN. I believe she was asking whether or not my summarization was full and complete.

Mr. WALBERG. You’re the chief privacy officer and a lawyer.

Ms. CALLAHAN. I am not a lawyer in this position. I just need to

clarify that.

Mr. WALBERG. Well, I am a minister and I am always a minister.

You are a lawyer and are always a lawyer. We can’t get away from

it.

Ms. CALLAHAN. That may be true. That may be true, sir.

Mr. WALBERG. Why did she have to go to the Office of General

Counsel?

Ms. CALLAHAN. As with any office there certainly are reasonable

disagreements on different positions, and she was just confirming,

indeed, that what I had said she was probably making sure that

was indeed accurate and I believe she received that confirmation.

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Mr. WALBERG. Do you believe that the front office staff had an

appropriate understanding or appreciation of FOIA statute and

processes?

Ms. CALLAHAN. I believe they have a much more robust understanding of FOIA than when they first arrived.

Mr. WALBERG. So that’s changing.

Ms. CALLAHAN. I hope so.

Mr. WALBERG. I yield my time.

Chairman ISSA. Would the gentleman yield?

Mr. WALBERG. Yes, I would.

Chairman ISSA. Because I believe the next panel is going to be

very different. I would like the summarize a couple of things about

this hearing that I think have come to light.

One is this hearing has never been about the reduction in the

backlog of FOIA. Whether that was produced by contractors paid

over $7 million by new equipment, or by transferring to other departments. This has been about somewhere north of a thousand requests that were politically sensitive that involved the press in

most cases, many cases, in one case a Member of Congress. Those

are the only ones we’ve ever really talked about. If they don’t get

special handling as we’re well aware, the Office of General Counsel

often has no impact on thousands and thousands of requests. The

career professionals receive them, make decisions and send them

out.

Those are the ones that this committee in our oversight role are

pleased with. We’re pleased with the vast majority. We’re pleased

with the thousands of FOIA professionals throughout the Federal

Government. So I just want to make clear in closing this is not

about the reduction or the increase, and as a matter of fact, it is

not about the very, very great and positive words that President

Obama said on day one when he wanted to make a statement that

there would be more openness, and that effectively, in my words,

you err on the side of disclosure that, in fact, we don’t want to err

on the side of secrecy, particularly at Homeland Security. This

would be important.

So as we go into the second panel, we meet with the IG and others, hopefully we will all understand that we want to limit this to

only the portion that is by definition controversial. The forwarding

and SharePoint is a great piece of software. I am very familiar with

it. Is a good investment. But forwarding it so that somebody can

make a decision which we can only know in their own minds their

deliberative process has to be scrutinized by this committee because we are the committee of all of the questions of abuse and

we’re the overseer of the Hatch Act and other laws designed to

keep politics out of the policy of the executive branch.

I thank the gentleman for yielding.

We will now take a 5-minute recess to reset.

[Recess.]

Chairman ISSA. Thank you all for your patience as we reset. We

now recognize the second panel of witnesses. Mr. Charles Edwards

is acting inspector general of the Department of Homeland Security, welcome. And Mr. John Verdi is senior counsel and director

of open government project at EPIC.

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Pursuant to as you saw in the first round to the committee rules,

would you please rise, raise your right hands to take the oath.

[Witnesses sworn.]

Chairman ISSA. Let the record reflect that all witnesses answered in the affirmative, please be seated.

Since you were patient through the first round I won’t re-recite

anything. With that we recognize Mr. Edwards for his opening

statement.

STATEMENTS OF CHARLES EDWARDS, ACTING INSPECTOR

GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY; AND

JOHN VERDI, SENIOR COUNSEL, DIRECTOR OF OPEN GOVERNMENT PROJECT, ELECTRONIC PRIVACY INFORMATION

CENTER

STATEMENT OF CHARLES K. EDWARDS

Mr. EDWARDS. Good morning, Chairman Issa and Ranking Member Cummings, and members of the committee. I am Charles K.

Edwards, acting inspector general for Department of Homeland Security, DHS. Thank you for the opportunity to discuss DHS’s efforts to disclose information under the Freedom of Information Act

[FOIA]. My testimony today focuses on our review of the DHS’s

FOIA program, as well as the March 2011 report the, DHS privacy

office implementation of the Freedom of Information Act.

During the review, we found that the Office of the Secretary’s involvement in the FOIA process creates delays and causes the Department to violate the 20 business day statutory response requirement. DHS has a substantial FOIA caseload. In fiscal year 2009,

it received 103,093 FOIA requests, or 18 percent of the Federal

Government’s 557,825 requests.

In fiscal year 2010, the number of requests increased by 26 percent to 130,098. Under the guidance of the chief FOIA officer, the

DHS Privacy Office staff processed requests for the privacy office

and eight headquarters offices, while most of the Department’s

major components processed requests under the guidance of their

own FOIA officers.

The privacy office also promotes proactive disclosure which increases the Department’s level of transparency while potentially

decreasing the number of FOIA requests that the agency receives.

However, despite our positive findings, there were certain aspects

of DHS FOIA process that caused concern. Specifically, they determined that the Office of the Secretary’s involvement in the FOIA

process created inefficiencies that hampered full implementation of

the FOIA process.

Although components have been required to notify the Office of

the Secretary of certain FOIA cases since 2005, this policy did not

require that the Office of the Secretary review the action FOIA releases. Instead, the process provided information about what was

being disclosed. However, in September 2009, with respect to these

FOIA cases, components were required to provide all the material

intended for release to the Office of the Secretary for review and

concurrence. And to such time, the components were prohibited

from releasing the FOIA responses. This additional level of review

and concurrence delayed the release of materials, and in some

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cases, caused the Department to violate the statutory time line. Department officials have stated that advanced knowledge of significant releases can improve the DHS’s response to media inquiries.

That’s often followed the public release of information about DHS

activities.

Although we understand the Department’s reasoning, we do not

consider that delaying a FOIA release is the best public policy, particularly when such delays lead to the violation of the statutory

deadline.

We make several recommendations in our report that promote

the privacy officers proposals and initiative. We recommend that

DHS first develop additional policies on proactive disclosure; second, formalize the roles and responsibilities of the public liaison;

and third, implement the internal review function to maximize efficiencies and improve the administration of FOIA operations.

In addition, we recommend that the chief FOIA officer regularly

make recommendations to the Secretary for adjustments to agency

practices, policies, personnel and funding as necessary to improve

implementation of the DHS FOIA program, reduce the Department’s exposure to legal risks, and implement the President’s vision as articulated in the 2009 guidance.

In conclusion, the Department has made some important

progress in administration of the FOIA. We recognize the challenges involved in processing a large number of FOIA requests

each year, especially in a timely manner. By implementing our recommendations, we trust the Privacy Office can improve the overall

efficiency in the DHS FOIA disclosure program. We look forward

to additional collaboration during the corrective action process.

Mr. Chairman, this concludes my remarks and I would be happy

to answer any questions that you or the committee members may

I have.

Chairman ISSA. Thank you, Mr. Edwards.

[The prepared statement of Mr. Edwards follows:]

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Chairman ISSA. Mr. Verdi.

STATEMENT OF JOHN VERDI

Mr. VERDI. Good morning, Mr. Chairman, Ranking Member

Cummings, and members of the committee, thank you for the opportunity to testify today. My name is John Verdi, and I’m senior

counsel at the Electronic Privacy Information Center, commonly

called EPIC. I’m director of EPIC’s open government project. We

have a longstanding interest in open government, particularly in

the power of transparency to ensure accountability for executive

agencies.

Since EPIC’s establishment in 1994, we have filed Freedom of Information Act requests with Federal agencies, including the Department of Homeland Security, concerning domestic surveillance

programs and emerging electronic privacy topics. FOIA has helped

to guarantee the public’s right to know for generations of Americans.

President Obama made open government and transparency a

hallmark of his administration on his first day in office, stating

that, ‘‘The Freedom of Information Act should be administered with

a clear presumption. In the face of doubt openness prevails.’’ But

political review of FOIA request is antithetical to the fundamental

values that undergird the act.

In EPIC’s history of successful FOIA practice, we have never encountered policies like the DHS program at issue at today’s hearing. EPIC often clashes with agencies of the application of exemptions. We battle agencies’ failure to comply with statutory deadlines. We frequently litigate, challenging agencies’ alleged legal

basis for withholding specific records. But we have never observed

practices that flag FOIA requests for political review. We are not

aware of any other program that has singled out FOIA requests

based on politically sensitive content or the identity of the requester. In our experience this program is unique, and it is uniquely harmful.

Political review delays the release of records and raises the specter of wrongful withholdings. EPIC’s experience with DHS from

2009 through this morning has been almost exclusively characterized by improper delays. Since 2009, the Department of Homeland

Security has failed to comply with FOIA deadlines in 100 percent

of requests filed by EPIC. It has failed to comply with multiple

deadlines regarding some single requests. These delays pose real

frustrations for even the savviest FOIA requesters. For the majority of FOIA requesters, delays can prevent the disclosure of records

in a useful timeframe, or they can preclude the disclosure at all.

Federal law simply does not permit agencies to select FOIA requests for political scrutiny of either the request or of the requester.

The political review process raises the specter of political influence over disclosure, it is unlawful. Unless records fall within one

of nine narrow statutory exemptions, anyone who seeks documents

under FOIA is entitled to receive them. No provision of the act allows an agency to deny a FOIA request or delay its response for

political reasons. In fact, the law requires expedited processing of

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records concerning ongoing Federal activities, just the sort of disclosures that were delayed by DHS’s political review.

Although DHS alleges that political vetting no longer occurs,

there has been no formal publication confirming an end to the policy. And the inspector general’s report describes ongoing political

review. We are troubled that political vetting apparently continues

at DHS. And we are deeply concerned that such unlawful review

might be practiced by other executive agencies.

Finally, I wish to highlight another DHS policy, unilateral administrative closures that contravenes the FOIA, thereby reducing

transparency and hindering accountability. Based on EPIC’s experience, EPIC has four recommendations. First, DHS should immediately cease political review of FOIA requests; second, DHS should

immediately disclose all agency records responsive to FOIA requests including the request by the AP that were subject to political review; third, all other executive agencies should immediately

cease political review of FOIA requests and report to this committee the extent to which they engaged in such review; and fourth,

all agencies should certify as part of their annual FOIA reporting

requirements that no FOIA requests were reviewed by political appointees.

I thank you for your interest and will be pleased to answer your

questions.

[The prepared statement of Mr. Verdi follows:]

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Chairman ISSA. Thank you. And I think you both set a record,

each of you stayed under the 5 minutes.

At this time, I’m going to recognize the gentleman from Michigan

for his 5-minute questions. Mr. Walberg.

Mr. WALBERG. Thank you, Mr. Chairman. I am surprised to be

sitting this far down on the dais and have the opportunity to question first, that’s great.

Chairman ISSA. Sir, you’re No. 1 with me.

Mr. WALBERG. Thank you, thank you. That’s why I like this committee. I serve on Homeland Security as well, so this, of course, is

very, very interesting to me. Because not only are we responsible

for making sure that our homeland is secure, but that those who

are making our homeland secure are secure in the fact that we

want to know, and ought to have that information. Thank you to

the witnesses for being here today.

Mr. Verdi, you made several statements about the political appointee review process. You used some words like antithetical,

harmful, but the word that really caught my attention was ‘‘unlawful.’’ That you believe it is unlawful for political appointees to be

involved in the FOIA review process, why?

Mr. VERDI. I believe it to be unlawful for political appointees to

be involved in the political review process at DHS for this reason:

The criteria under which those appointees were reviewing requests

includes criteria including the identity of the requester on the subject matter of the request. And the Supreme Court, in two cases,

one is National Archives versus Favish, and one is DOJ versus Reporters Committee in 1989 has held that neither the identity of the

requester nor the content of the request is relevant to the agency’s

obligations under FOIA.

So these political criteria, the identity of the requester, whether

or not the request relates to a Presidential agency or priority, the

content of the request. The Supreme Court has spoken and has

said that unless the request implicates documents concerning one

of nine narrow exemptions, that those records must be disclosed.

And that’s why I believe this political review process to be unlawful. It considers factors that the U.S. Supreme Court has stated are

simply irrelevant.

Mr. WALBERG. Mr. Edwards, would you concur and why?

Mr. EDWARDS. Can you repeat the question?

Mr. WALBERG. On the political review process being unlawful, I

mean, we heard the words ‘‘antithetical,’’ ‘‘harmful.’’ It is all negative, but unlawful steps up to a higher plane.

Mr. EDWARDS. Well, unnecessarily bureaucratic hurdles have no

place in the new era of open government the President has proclaimed. So we think that the significant review process just

delays, and there should be no delay. The Secretary has overall authority over her personnel. So we don’t think it is unlawful, yet we

don’t like any delays. Because when the career FOIA personnel has

finished reviewing it, it should be going out the door.

Mr. WALBERG. Thank you.

Mr. Verdi, would you consider the DHS awareness process a review?

Mr. VERDI. My understanding of the, quote, unquote, awareness

process as it was described today is that it continues to flag FOIA

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requests for special consideration based on political factors, factors

that have nothing to do with the FOIA statute or the application

of exemptions. So as far as I can tell that to review the committee’s

report and the inspector general’s report and I believe Ms. Callahan’s testimony earlier today indicates that if political staff identifies issues that they want to see resolved before a FOIA requests

goes out that they can halt the disclosure during that 1-day review

period. So that strikes me as certainly constituting a review and

not simply an awareness process.

Mr. WALBERG. OK. The July 2009, directive from Mary Ellen

Callahan—and I pose this to Mr. Verdi—that directive referenced

in EPIC’s letter to OGIS specifies that the FOIA office must provide to the front office the requester’s name, city, State, affiliation

and description of organization, if not widely known. Is it lawful for

DHS to require this information about FOIA requesters?

Mr. VERDI. I do not believe it to be lawful. I believe under binding Supreme Court precedent that the requester’s name, city,

State, affiliation, a brief description of any lesser-known organization’s mission is irrelevant to the disclosure. Now, whether this information is incidentally collected throughout the process, obviously, a FOIA requester must identify him or herself to the agency,

right? And typically they identify their city and State so that they

may receive records, but the use of this criteria for the processing,

redaction, or withholding of records I think is plainly unlawful.

Mr. WALBERG. Thank you.

Chairman ISSA. I thank the gentleman.

The ranking member is recognized for 5 minutes.

Mr. CUMMINGS. Mr. Edwards, just tell me something. Can you

tell us whether the—over the wires now they’ve got something the

chairman said earlier today. He said, this whole thing reeks of a

Nixonian enemies list. And I was just wondering, in your review,

in fairness to everybody, did you find that to be the case? Did you

find any evidence of that kind of atmosphere?

Mr. EDWARDS. No, and I would like to explain, if I could.

Mr. CUMMINGS. Yes, please.

Mr. EDWARDS. Our scope of our investigation or inspection was

to look at the process. We looked at the process from the beginning

to the end, and we found we had some heartburn over the significant review process. The job that you have me to do is to look to

see if DHS’s programs and operations add value, and that’s all I

did.

Mr. CUMMINGS. Well, let me ask you this. Did you find that questions concerning the identity of the requester were asked in order

to impact the amount of information that would be disclosed?

Mr. EDWARDS. I only looked at the processor, and I cannot comment on that.

Mr. CUMMINGS. Well, I want to be fair to everyone. Again, on

page 11 of your report, you said this: After reviewing the information and interviewing DHS FOIA experts, we determined that the

significant request review process did not prohibit the eventual release of information.

Is that accurate?

Mr. EDWARDS. That’s correct, sir. But if you look at the Attorney

General’s March 2009, memo: Unnecessary bureaucratic hurdles

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have no place in the new era of open government that the President has proclaimed.

And, also, if you look at the January 2009, President’s memo: In

responding to requests under FOIA, executive branch agencies

should act promptly in a spirit of cooperation, recognizing that such

agencies are servants of the public. So we should not have any

delays——

Mr. CUMMINGS. Right.

Mr. EDWARDS. But, however, when we looked at it, we did not

find anything that was changed or abstracted from sending things

out.

Mr. CUMMINGS. Did you find that anybody was disadvantaged, to

your knowledge?

Mr. EDWARDS. Well, you are exposing the Department to go beyond this 20-day statutory timeline, and also we are exposing the

Department to legal risk. I haven’t done any legal analysis on that,

however.

Mr. CUMMINGS. Let me tell you why I’m asking you that. In your

report on page 20 you say, no FOIA officer said that requesters

were disadvantaged because of their political party or particular

area of interest. Is that accurate?

Mr. EDWARDS. That’s accurate.

Mr. CUMMINGS. Now your report highlights several initiatives

that DHS has already taken to implement the President’s and Attorney General’s FOIA guidance on proactive disclosure and the

presumption of disclosure that are not fully discussed in your written testimony. Can you elaborate on the steps the Department has

taken to improve the FOIA operations since January 2009——

Mr. EDWARDS. Yes, sir.

Mr. CUMMINGS [continuing]. As discussed in your report?

Mr. EDWARDS. Yes, sir. DHS’s privacy officer/FOIA officer have

taken several steps toward this proactive measure. They have biweekly meetings, because it is a decentralized FOIA process. The

components have their own FOIA offices, and the headquarters office as well as the privacy office is serviced by the chief privacy officer. They have training. They have biweekly conference calls. They

send staff to help out. So there are a number of things that the

FOIA officer has taken into consideration to improve the process.

And, also, there are eight methods, posting calendars and historical information, FOIA logs. All of them are posted, and they also

have the electronic reading room in place as well. So they have it

done a number of things, and we credit them for that, but they

need to go even further.

Mr. CUMMINGS. And, Mr. Verdi, just one question. You were saying that certain political review was inconsistent with Supreme

Court decisions, is that right? Is that what you said?

Mr. VERDI. Yes, it is inconsistent with Supreme Court——

Mr. CUMMINGS. So when Mr. Fong—you were here when he testified, right?

Mr. VERDI. I was.

Mr. CUMMINGS. The general counsel. When he says it is not only

legally permissible it is sound managerial practice for the Office of

the Secretary to be informed of an inclination with the chief FOIA

officer to play an active role in overseeing the Department’s FOIA

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processes, that’s not inconsistent with that, that is what you’re saying?

Mr. VERDI. I believe that statement is correct, but I believe that

the criteria used in this circumstance are unlawful. The general

statement that those individuals may play a role in such review I

think is uncontroversial. The criteria, however, that it’s political

criteria, as opposed to statutory legal criteria based on the exemptions, that is where I differ as to this specific program.

Mr. CUMMINGS. My time has expired.

Chairman ISSA. I thank the gentleman.

We now go to the gentleman from Arizona, Mr. Gosar.

Mr. GOSAR. Thank you, Mr. Chairman.

Mr. Verdi, on a previous subcommittee we heard testimony from

Mr. Earl Devaney from the RAT Board decided three agencies for

most noncompliant with fraud, waste, and abuse, the second one

being DHS. How does this go along with the process——

Hold on 1 second. Let’s go a step further.

We actually heard Ms. Callahan talk about the Herculean efforts

going to catch up on some of the bureaucracy or trying to catch up

on some of these FOIA requests. And I’m having a hard time here.

I’m a businessman. I’m a dentist. I actually watch government.

Seven groups have to hang my television, when I am perfectly capable to do it myself. How does this process and how do these

delays cause increased costs to the American taxpayer?

Mr. VERDI. Well, it’s clear that these sorts of delays result in increased litigation. EPIC has been forced to litigate FOIA requests

to obtain the disclosure of records that we otherwise could have obtained directly from the agency without litigation costs and

through the normal FOIA process if the deadlines had been met.

And the way that this impacts across the American taxpayer is

that the FOIA statute contains a fee-shifting provision and a costshifting provision. And what that means is that when FOIA requesters are required by the agency to go to litigation to force disclosure of records, they can obtain fees from the agency.

EPIC litigates our own cases, and we have recovered fees from

agencies on this basis. Those fees come directly from agency budgets; and they, at the end of the day, are funded by the taxpayer.

Mr. GOSAR. So we were building up a bureaucracy within a bureaucracy, right?

Mr. VERDI. It is. And those costs are avoidable. If agencies work

with requesters to meet statutory deadlines, then there is no need

for litigation and there is no need to invoke that fee-shifting provision.

Mr. GOSAR. Do you see a reason if an individual—aside privacy

issues, if an individual is given a FOIA why it shouldn’t just be

broadcast to anybody?

Mr. VERDI. I see no reason, and I think affirmative disclosure by

the agency can be a powerful tool for increasing transparency and

increasing open government.

Mr. GOSAR. So once we go through one individual it could used

like in a mass media aspect where we allow the individuals all

around America to pick and choose through—like technology driven.

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Mr. VERDI. There are many technologies that enable one to many

communications that the Department could leverage in order to

better publicize the documents that are requested by individual

FOIA requesters and make them more widely available.

Mr. GOSAR. So a definite streamlining process should be in order.

Mr. VERDI. I agree.

Mr. GOSAR. Mr. Edwards, these FOIAs have had a kind of a

chilling effect—or these delays have had a chilling effect on the

FOIA requests. I’m also from Arizona, and we’ve got a lot of problems with our southern border. We’ve got a lot of violence. How do

you think this could have implicated the process particularly of

FOIA in maybe getting proper information out to the proper authorities?

Mr. EDWARDS. Without getting into specific FOIA cases, my team

went ahead and did a review of the FOIA process. And what we

found was, even though in 2009 there was 103,000 and 2010 there

was 130,000, 70 percent of that was immigration alien files. There

was still a number of FOIAs that, once they are completed, they

could have gotten out of the door and they still ended up in the review process. The 1, 11⁄2 percent they are talking about, the 662

which ended up in the significant review process, that also should

not have been delayed. So I cannot really speak to the specific

FOIA case, but this is what was our scope, and this is what we observed.

Mr. GOSAR. Were there potential cases involving our border patrol law enforcement on our southern border that could have been

implicated by a FOIA? Do you know of such?

Mr. EDWARDS. I don’t know of such, sir.

Mr. GOSAR. I yield back the balance of my time.

Chairman ISSA. I thank the gentleman.

Mr. Ross, are you prepared?

Mr. ROSS. Yes, sir.

Chairman ISSA. Then I yield you 5 minutes.

Mr. ROSS. Thank you, Mr. Chairman.

Mr. Verdi, I understand your organization’s made a few requests

in the past. I guess over the years you’ve had some adequate responses and some inadequate responses. My question to you is

that, based on your experience, have you seen an improvement in

the last year for your FOIA requests or has it been declining or

stayed the same?

Mr. VERDI. Sadly, we have maintained a 100 percent noncompliance rate or, rather, the agency has maintained a 100 percent noncompliance rate with EPIC’s requests over the past year in terms

of meeting statutory deadlines. So we have neither seen an improvement nor I think degradation in the response.

Mr. ROSS. And these have been based on just grammatical errors. Have there been substantive errors? Why have the requests

not been granted in a timely fashion?

Mr. VERDI. They simply have either not responded to the request, they have asserted exemptions again outside the statutory

period that we then had to challenge through the administrative

process. But, in any case, we did not receive documents prior to the

20-working-day deadline.

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In many cases, the agency also violated the deadlines for processing administrative appeals; and in one circumstance the agency

missed its deadline to answer a lawsuit in which we were trying

to force disclosure of documents.

Mr. ROSS. So, in other words, there has been absolutely no

change, other than maybe worse.

Mr. VERDI. I have not seen a material change, no.

Mr. ROSS. OK. Recently, there has been—since President Obama

entered office, he has issued three memorandums relating to transparency and open government issues. Two of those memorandums,

one regarding the Freedom of Information Act and one regarding

transparency and open government, were released on the President’s first full day in office. And then Attorney General Eric Holder instructed by memorandum the chief FOIA officer to support career staff by ensuring that they have the tools necessary to respond

promptly and efficiently to FOIA requests.

The President has emphasized on several occasions the need and

requirement that there be an efficient and immediate response and

transparency to FOIA requests. In fact, in January 2009, he stated,

in the face of doubt, openness prevails. The government should not

keep information confidential merely because public officials might

be embarrassed by disclosure because errors and failures might be

revealed or because of speculative or abstract fears. Nondisclosure

should never be based on an effort to protect the personal interest

of government officials at the expense of those they are supposed

to serve.

My question to each of you is, do you feel that the Department’s

front-office review process comports with the President’s objectives

to FOIA?

Mr. Edwards, I’ll start with you.

Mr. EDWARDS. Well, as we looked through the process, particular

interest came to us about the significant review process, because

that had changed from the 2005 practice. So starting September

2009, there was a review on concurrence——

Mr. ROSS. Right.

Mr. EDWARDS [continuing]. Which really delayed the process. We

have brought this to their attention, and we have a number of recommendations, and the Department has taken efforts to put the

SharePoint site in place. It was 3-day notice, and now it has

changed as of this Monday to a day. So I think the Department has

made a number of changes.

Mr. ROSS. Just recently?

Mr. EDWARDS. Just recently.

Mr. ROSS. Mr. Verdi.

Mr. VERDI. I think that the basic act of flagging specific requests

based on this criteria—this politically sensitive criteria is inconsistent with the President’s commitment in this area.

Mr. ROSS. I yield back, Mr. Chairman.

Chairman ISSA. Would the gentleman yield?

Mr. ROSS. Yes, sir.

Chairman ISSA. Mr. Verdi, I would like you to elaborate on that.

You earlier said, if I understood correctly—I will just paraphrase—that sending information to political appointees so that

they are aware—let’s just say a press office—sending them as they

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go out or substantially as they go out would not violate FOIA so

that essentially the press office could respond when the press, now

having this information, asks questions. That part is just fine,

right?

Mr. VERDI. Correct.

Chairman ISSA. So it’s really the advanced notice and with the

ability to act that really distorts the process. Whether they act to

spin beforehand or they act to actually change the material release

for both of you, that’s where the line’s crossed, isn’t it?

Mr. VERDI. Yes, it is. It is the combination of delay, which is unlawful insofar as it violates the statutory deadlines, and the use of

criteria that have been labeled irrelevant by courts and by lawmakers to make a determination of a FOIA request. Those are the

two aspects that I believe are objectionable in this circumstance.

Chairman ISSA. I thank you gentleman.

And I guess I’m the last, so I will yield myself 5 minutes. This

will be the close.

First of all, for both of you, you’re really dealing with 662—to use

the number that apparently is the most accurate number today.

Those are the ones subject to delay or interference, not the rest of

the files, as far as we know; is that right?

Mr. EDWARDS. Yes.

Chairman ISSA. As to the IG and that’s——

Mr. VERDI. As far as I know based on the committee report.

Chairman ISSA. That has nothing to do with excess redacting

that you may find in those process.

Mr. Verdi, they talked about redacting. In your experience, how

often have you prevailed when you finally get through the process

of what you originally got versus what you ultimately are entitled

to after you object to the amount of redacting? What’s the ratio?

How often do you prevail?

Mr. VERDI. We almost universally prevail on at least some

redactions.

Chairman ISSA. But there is a pervasive problem, clearly—and I

think the IG would agree—that if redacting is over relative to secondary review, even when it doesn’t involve the 662, that says

something about getting from where prior Presidents have been to

where this President rightfully said he wanted to go; is that right?

Mr. VERDI. I think that overredaction is a real problem. It is a

clear problem for FOIA requesters like EPIC. I think it is an even

larger problem for FOIA requesters who have less legal expertise

and are less able to challenge those redactions in the administrative process and the litigation process.

Chairman ISSA. Thank you.

Mr. Edwards—by the way, thank you for your report. I realize

the scope of your investigation was limited, very different than

ours, but I thought it was, overall, very, very good work.

Did you look at SharePoint and how it works in your investigation?

Mr. EDWARDS. No, sir. We became aware of the SharePoint system, the new platform, and the 3 days where people can—the components can submit the responses and after 3 days they can get it

out of the door. And that changed to a day this Monday. We have

not had——

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Chairman ISSA. Coincidence of our hearing notwithstanding.

Mr. EDWARDS. We have not had an opportunity to assess the system because our scope was to look at the——

Chairman ISSA. Do you plan on looking at that, SharePoint?

Mr. EDWARDS. If that’s something the chairman wants us to do.

Chairman ISSA. I think the chairman and ranking member both

would like you to look at it.

One of my companies that I was affiliated with in the past has

SharePoint. So I’m aware that one of the things that it actually has

the power to do—and you’ll have to see whether the version you

bought as it is implemented—is in fact it can partial share. It’s designed so that you can look at—for example, that political review

could be limited so it wouldn’t see the source of who it is from, at

least in the macro sense.

So I’d like you to look into it and give us a view on whether or

not SharePoint could meet your high standards of eliminating this

1-day delay altogether, eliminating any chance that information,

although publicly required and publicly disclosed, later when this

material is put on the Web site could be not available to those

doing the review.

As the ranking member said, it smacks of the Nixonian era, who

are my enemies—and if your enemy is Mr. Verdi or it is the Associated Press, the question is, why does a political appointee need to

do it if in fact they are just reviewing on behalf of making sure the

Secretary is informed?

The question that remains, did your investigation—you’re familiar with the deputy chief of staff to the Secretary having done her

own reviews? In other words, doing her own searches for FOIA discovery. Are you familiar with that?

Mr. EDWARDS. No, sir.

Chairman ISSA. That would be the other one that I am interested

in. We found that, in some cases, rather than FOIA professionals,

political appointees did their own reports. My understanding, and

I think all of us who have ever done Google search understand,

that the results are only as good as the input. So if you input less

than would be responsive, you get back less than what a FOIA professional would get in order to fully disclose as the President envisioned.

So although those were not the main topics today, I would appreciate it if you would look into them.

I am particularly concerned with the idea that you have all these

career professionals who are very capable of doing full disclosure

and making redacting decisions, and then you have some of the

material eventually delivered to the press and others having been

self-selected by people. And whether they are political appointees

or, as I found with the Minerals Management Service, what they

thought was important to Congress to know and we found out with

the British Petroleum problem was much less than we should have

known.

So those areas I would appreciate your looking into it as you see

it fit and let us know.

I want to take this moment to thank both of you. You did a lot

of good work. Your report is good work. This committee has a special place in its heart for two groups. Sunlight people, who serve

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no purpose other than getting the truth out of government, which

we benefit from; and the IGs, who are absolutely essential. We

wouldn’t even know about 90 percent of what we ultimately become

interested in if not for your fine work in your field.

So I want to thank you all. This was an important hearing. It

is not the last Freedom of Information hearing. It is not the last

sunset—sunlight type of a hearing but was an important one.

I thank you, and we stand adjourned.

[Whereupon, at 12:20 p.m., the committee was adjourned.]

[The prepared statements of Hon. Edolphus Towns and Hon.

Gerald E. Connolly follow:]

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