U.S. GOVERNMENT PRINTING OFFICE

72–077 DTP WASHINGTON : 2001

AGENCY RESPONSE TO THE ELECTRONIC

FREEDOM OF INFORMATION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

INFORMATION, AND TECHNOLOGY

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JUNE 14, 2000

Serial No. 106–220

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

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

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Counsel and Parliamentarian

LISA SMITH ARAFUNE, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION, AND TECHNOLOGY

STEPHEN HORN, California, Chairman

JUDY BIGGERT, Illinois

THOMAS M. DAVIS, Virginia

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

JIM TURNER, Texas

PAUL E. KANJORSKI, Pennsylvania

MAJOR R. OWENS, New York

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

J. RUSSELL GEORGE, Staff Director and Chief Counsel

HEATHER BAILEY, Professional Staff Member

BRYAN SISK, Clerk

TREY HENDERSON, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on June 14, 2000 ............................................................................... 1

Statement of:

Dalglish, Lucy, esquire, executive director, the Reporters Committee for

Freedom of the Press, accompanied by Rebecca Daugherty, director,

Reporters Committee FOI Service Center; Patrice McDermott, policy

analyst, OMB Watch; and Ian Marquand, Freedom of Information

Chair, the Society of Professional Journalists ............................................ 62

Gotbaum, Joshua, Executive Associate Director and Controller, the Office

of Management and Budget; Ethan Posner, Deputy Associate Attorney

General, U.S. Department of Justice; and Henry J. McIntyre, Director,

Directorate for the Freedom of Information Security and Review, Department of Defense ..................................................................................... 3

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

Dalglish, Lucy, esquire, executive director, the Reporters Committee for

Freedom of the Press, prepared statement of ............................................. 67

Gotbaum, Joshua, Executive Associate Director and Controller, the Office

of Management and Budget:

Information concerning conflicts .............................................................. 49

Information concerning disagreement between OMB and OMB

Watch ...................................................................................................... 123

Information concerning EFOIA ................................................................ 56

Information concerning Washington National Records Center ............. 61

Prepared statement of ............................................................................... 6

Horn, Hon. Stephen, a Representative in Congress from the State of

California, prepared statement of ................................................................ 2

Marquand, Ian, Freedom of Information Chair, the Society of Professional

Journalists, prepared statement of .............................................................. 87

McDermott, Patrice, policy analyst, OMB Watch, prepared statement of ... 77

McIntyre, Henry J., Director, Directorate for the Freedom of Information

Security and Review, Department of Defense, prepared statement of ..... 29

Posner, Ethan, Deputy Associate Attorney General, U.S. Department of

Justice, prepared statement of ..................................................................... 13

Turner, Hon. Jim, a Representative in Congress from the State of Texas,

prepared statement of ................................................................................... 127

(1)

AGENCY RESPONSE TO THE ELECTRONIC

FREEDOM OF INFORMATION ACT

WEDNESDAY, JUNE 14, 2000

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

INFORMATION, AND TECHNOLOGY,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

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

2154, Rayburn House Office Building, Hon. Stephen Horn (chairman of the subcommittee) presiding.

Present: Representatives Horn, Ose, Turner, and Maloney.

Staff present: J. Russell George, staff director and chief counsel;

Heather Bailey, professional staff member; Bonnie Heald, director

of communications; Bryan Sisk, clerk; Will Ackerly, Chris Dollar,

and Meg Kinnard, interns; Trey Henderson, minority counsel; and

Jean Gosa, minority assistant clerk.

Mr. HORN. The Subcommittee on Government Management, Information, and Technology will come to order.

As e-commerce and e-mail continue to supplant traditional paper

forms of communication, Congress enacted and the President

signed into law the Electronic Freedom of Information Amendments of 1996. The goal of these amendments was two-fold: to provide citizens with readily available electronic access to the most

commonly requested information generated by Federal departments and agencies, and also to decrease the logjam of public requests for information that in some cases took agencies years to

provide.

Unfortunately, the Electronic Freedom of Information Act has

not been as successful as intended. Journalists and private citizens

say that some agencies still take a year or more to provide information requested under the Freedom of Information Act. Other critics,

such as OMB Watch, which is represented here today, report that

some agencies still have not identified their most commonly requested documents, much less placed them online. In part, some

agencies do not know what the law requires, which has resulted in

the deletion of electronic reading rooms, handbooks, and documents

from agency Web sites.

The subcommittee will examine these and other issues today in

our effort to determine whether Federal departments and agencies

are complying with the Electronic Freedom of Information Act.

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

2

3

Mr. HORN. We will proceed. We note that this is panel one, and

we will—let me just go through the ground rules. We swear in all

witnesses before subcommittees and the full committee of Government Reform, and we go down the agenda, just as you see it before

you. Automatically, when I call your name to begin your presentation, your full statement is already going to be in the record, so

what we would like you to do is maybe 5 minutes, 8 minutes, 10

minutes at the most—to have you not read it. Yet, despite my saying this, people still mumble, mumble, mumble, and I do not need

that. We have got that in the record. What I do need is a simple

explanation of where you are on this issue, and just tell it like it

is and use your own words, not your bureaucracy, and we will get

along fine.

On the swearing in, I would like to have all the people that are

from your staff in the particular agency—the clerk will note who

has taken the oath so we do not have to give them when they are

giving you ideas in the questions and answer period.

If you and the people that support you would stand and raise

your right hands, we will give you the oath.

[Witnesses sworn.]

Mr. HORN. The clerk will note the three witnesses affirmed the

oath.

We will now then begin with our first witness, and that’s Joshua

Gotbaum, the Executive Associate Director and Controller, the Office of Management and Budget.

Mr. Gotbaum is a regular here. We don’t give frequent flyer

points, but we are always glad to see you. It’s your show.

STATEMENTS OF JOSHUA GOTBAUM, EXECUTIVE ASSOCIATE

DIRECTOR AND CONTROLLER, THE OFFICE OF MANAGEMENT AND BUDGET; ETHAN POSNER, DEPUTY ASSOCIATE

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; AND

HENRY J. MCINTYRE, DIRECTOR, DIRECTORATE FOR THE

FREEDOM OF INFORMATION SECURITY AND REVIEW, DEPARTMENT OF DEFENSE

Mr. GOTBAUM. Thank you, Mr. Chairman.

Mr. HORN. Right.

Mr. GOTBAUM. I will, with your permission, summarize our view

of the main points here.

I don’t want to spend a whole lot of time telling the committee

that we think access to information is important, but I think it is

essential that at least we affirm that we do so. Our view is that

taking advantage of information technology to provide greater accountability, greater transparency, more information for citizens

about their government and information from citizens is an essential part of the basic task of Government management. We take

that one very seriously.

And I think it is important, when we talk about EFOIA and talk

about FOIA and talk about the transmission of information, that

we do so in context, because the first point that we ought to get

on the table is that we view EFOIA as an enabling statute. This

statute said, with regard to requests for Government information,

‘‘To the extent you can, you should move to electronic transmission.

You should take advantage of information technology, take advanVerDate 11-MAY-2000 08:46 Jun 18, 2001 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\DOCS\72077.TXT HGOVREF1 PsN: HGOVREF1
4

tage of the Internet,’’ and we believe that the administration is

doing so with a vengeance.

I’ve listed examples in my testimony, so I’m not going to go over

them here. There is case after case after case in which agencies

have taken advantage of technology to put basic data bases online,

to start soliciting information from citizens online.

I don’t want to gild the lily, but I think it is really quite important, Mr. Chairman, that we recognize that that is consistent with

and, in our view, the spirit of EFOIA.

EFOIA, itself, provides some mandates with regard to taking advantage of electronic technology. It says, ‘‘You will have electronic

reading rooms.’’ It says, ‘‘You will have online indexes.’’ And it

says, ‘‘You will provide an electronic option for what I’ll call the ‘traditional’ FOIA requests.’’ And the law also says that OMB

should provide guidance to agencies on compliance and on online

indexes, and we have done so. We have provided guidance. We

have worked with the Department of Justice. And I will defer to

Ethan Posner to talk about the very extensive efforts by the Department of Justice to give agencies guidance. I think it is worth

noting and I think it is worth someone outside the Department of

Justice saying this. They have gone the extra mile with regard to

FOIA and EFOIA in the sense that not only have they provided

guidance, but they have provided online training sessions, they

have provided how-to books, etc.

From our perspective, we are using what I’ll call the ‘‘new economy broadcast model of information,’’ which I think EFOIA was intended to engender.

We have provided general guidance, both as to the kinds of handbooks that agencies should provide and working with the Department of Justice on guidelines. We have, in this case and in dozens

of others, encouraged agencies to go online to provide electronic information and other matters.

This is a piece of the Clinger-Cohen mandate that this committee

laid down with and which we are complying with which we agreed

in GPEA. We have implemented that, as we have other initiatives,

by, two things, Mr. Chairman. One is generic guidance on information systems that they should be thought about in advance and the

standards they should meet, etc. And two is to say to agencies, ‘‘We

will bring into the budget process requests for information that do

meet these standards, that are consistent with the program.’’

If you asked the question, ‘‘What really does OMB do in this

area?’’ I would characterize it as general guidance and encouragement. We support individual agencies in their efforts to provide

more-specific guidance—in this case the Department of Justice—

and then we bring agency requests for improvements in IT and improvements in personnel, etc., into the budget process. From our

perspective, the traditional FOIA model—although an important

one, one that has been a bedrock of Government information provision—should be a last resort. We don’t think that people should

have to send a letter through snail mail to some agency and ask

the question in exactly the right way and have someone spend 10

or 20 days figuring out whether they do or don’t have the information and then send a snail mail response. We think that doesn’t

make sense.

5

What we think makes infinitely more sense is that what we believe EFOIA and the other pieces of legislation before this committee would say: the Government should aggressively, affirmatively

put information out and online, and this is something which we are

doing. Agency after agency is putting information online. Agency

after agency has created online reading rooms. Agency after agency

is creating online indexes.

And so we view this issue, Mr. Chairman, as one in which we

are making very, very substantial progress. We acknowledge that

the information revolution is changing the very business of Government and we are responding to that, but we think that we are responding to it quite aggressively and in a way that is entirely consistent with the spirit of this legislation that we all support.

Mr. HORN. That’s very helpful.

[The prepared statement of Mr. Gotbaum follows:]

6

7

8

9

10

11

Mr. HORN. We next have Ethan Posner, the Deputy Associate Attorney General representing the U.S. Department of Justice.

Mr. POSNER. Mr. Chairman, members of this subcommittee, good

afternoon. I am pleased to testify about the EFOIA amendments

today.

As Attorney General Reno has stated repeatedly, FOIA and

EFOIA are at the heart of open Government and democracy. As I

know from personal experience, the Attorney General has fostered

a personal and sustained commitment to FOIA throughout the entire Justice Department. Under her leadership, we have placed a

sustained priority on improving our FOIA service to the American

people.

Just in the past year, Mr. Chairman, the Department of Justice

has processed almost a quarter million FOIA requests, releasing

hundreds of thousands of pages of important Government information to the public.

And let me also add, in the spirit of Mr. Gotbaum’s remarks, we

have, of course, also made available on our Web site an extraordinary number of documents that, although not requested by FOIA,

it is part of the spirit of EFOIA. It is part of getting our information out to the public directly so that, as Mr. Gotbaum accurately

put it, hopefully 1 day FOIA becomes the last resort.

We believe FOIA was strengthened greatly with the 1996 enactment of EFOIA. We believe Federal agencies are in substantial

compliance with EFOIA. And, in particular, we believe Federal

agencies have done an excellent job posting a wide variety of Government information on the Internet. All of this, or virtually all,

has occurred just in the last few years.

Just in the last 2 years, for example, numerous Federal agencies

have developed particular FOIA Web sites, they have posted approximately 100,000 pages of important FOIA-related documents

on these sites. This accomplishment is a testament to the importance and, we believe, success of EFOIA.

In particular, we are very proud of the Department of Justice’s

comprehensive FOIA Web site, which is easily accessed through a

specific FOIA link on our main Department of Justice home page.

Today, the Department’s FOIA Web site offers tens of thousands of

pages of records, FOIA reference material. You can access all sorts

of FOIA guides. You can learn how to make a request from our

Web site. You can find all the FOIA contacts at the Department

of Justice. You can browse through enormous electronic reading

rooms containing all sorts of information. You can get Justice Department policy statements. You can get all of our major manuals,

like the U.S. Attorney’s Manual. You can get all sorts of annual reports on a wide variety of subjects—press releases, FOIA guides,

Office of Legal Counsel opinions, Immigration decisions, antitrust

guidelines. And you can get records of dozens of closed FBI investigations, including those on Al Capone and Julius and Ethel

Rosenberg, to name just a few.

In addition, Mr. Chairman, to complying with EFOIA and maintaining our own Justice Department FOIA Web site, we help other

agencies comply and refine their own FOIA Web sites.

We appreciated Mr. Gotbaum’s remarks about the Department’s

effort. Obviously, we agree with that. Although under EFOIA each

12

agency is responsible for implementing EFOIA, we have taken considerable action to encourage agency compliance in accordance with

the statute.

I set a lot of that out in my prepared remarks. Let me just highlight a few things.

We’ve issued extensive written guidance about what is required

under EFOIA and how to comply. We’ve held all sorts of training

sessions. We’ve issued frequently asked questions and answers.

We’ve issued detailed guidelines for model agency Web sites. We’ve

told Federal agencies, for example, to maintain a FOIA home page

on their Web site, to link the main page to their FOIA page. We’ve

explained how to make FOIA Web sites more user friendly. We’ve

held a specific conference attended by FOIA professionals that was

just devoted to agency Web sites. We reinforced our guidance there

and we emphasized an important issue, which is the coordination

of agency FOIA staff with agency technical staff, because it is the

technical staff, obviously, that play the critical role in posting the

information on the Internet.

In fact, the Attorney General followed up that conference with a

memorandum to department and agency heads in which she

stressed the importance of EFOIA. She feels very strongly about it.

I have heard her say that personally, myself, repeatedly. And she

reminded everybody why it is critical for the agency FOIA and

technical staff to work together to post information on the Web.

We have this FOIA counselor service, where our Office of Information and Privacy responds to thousands of phone calls and questions. They are in virtually daily contact with the FOIA professionals at Federal agencies around the United States.

In our view, Mr. Chairman, Federal agencies generally have followed the Department’s extensive guidance and training. They’ve

developed effective FOIA Web sites, and they have otherwise complied with EFOIA.

There will always be more work to do and there will always be

more progress to make, and we will make it and we believe the

other agencies will make it. But we also believe that the Department of Justice and other Federal agencies have provided considerably better service and more-responsive Government to the American people just in the last 24 months through our online access efforts.

We will continue to encourage compliance with EFOIA. We will

continue to work the Federal agencies to improve their FOIA sites

and improve their compliance with EFOIA, and we will continue to

work to post as much information as possible on not only our own

Web site but other Web sites.

We look forward to working with the chairman and the subcommittee on these important issues, and I’d be happy to answer

any questions.

Mr. HORN. Well, we thank you very much.

[The prepared statement of Mr. Posner follows:]

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Mr. HORN. I might add, I hope all three of you can stay through

the second panel, because I’d like to see a dialog here and not just

have everybody in the administration escape and then other things

come up and there’s no use—I mean, if we can do it today, fine;

otherwise, we’ve got to have another hearing and bring you all up

again, and that’s wasting your time and my time.

I appreciate your statements.

Let me just ask on this point—and then we’ll go to the Department of Defense—has the Department of Justice or OMB taken an

inventory with regard to the agencies and departments, such as,

‘‘Do you have this—‘‘ let’s say an electronic room, so forth? Has any

work been done along that line, either by OMB, Department of Justice, since you say there’s no central office here that really worries

about this?

Mr. POSNER. We certainly—we have sort of a daily dialog about

a range of FOIA issues with the FOIA professionals. Some of

that—some of those conversations are, you know, ‘‘When is your

annual report going to be ready,’’ and ‘‘Where’s this’’ and ‘‘Where’s

that,’’ so there is clearly some of that. We do review other agency

Web sites, and that is part of our overall dialog with them. I mean,

we don’t do an exhaustive survey every week, but we are certainly

aware of what is on the other sites, and as part of our training and

our ongoing—our daily dialog with the FOIA professionals in the

other agencies, certain those issues come up, Mr. Chairman.

Mr. HORN. Because we would be interested, if you have a document somewhere that just solves some of the basics, and to see to

what extent—we can always ask GAO to do it, but if you have it

we can save them another mission.

Mr. POSNER. We have a very thick notebook, I think, we printed

out of a lot of the pages from the other agency Web sites, if that

is what you are referring to.

Mr. HORN. Yes, just a check mark as to, ‘‘Did they do this under

the law or didn’t they?’’ That’s what we’re interested in in this series of hearings.

Mr. McIntyre, Henry J. McIntyre, is Director, Directorate for

Freedom of Information Security and Review, Department of Defense.

Thank you for coming, Mr. McIntyre.

Mr. MCINTYRE. Thank you, Mr. Chairman.

Mr. Chairman, my directorate develops the FOIA policy for the

Department of Defense and processes the requests for records

under the control of the Office of the Secretary of Defense and the

Joint Staff. Because of the missions, functions, and size of the Department of Defense, it is decentralized into the separate military

departments and defense agencies. The FOIA program, to include

implementation of the EFOIA, is, likewise, decentralized within the

Department of Defense components that consist of the Army, Navy,

and Air Force, the departments of those services, and 12 Defense

agencies. These DOD components conduct their own FOIA programs under the policy guidance of the DOD regulation which we

publish.

For purposes of directly implementing the legislation, my Directorate was and is responsible for 80 staff offices within Office of

Secretary of Defense, the Joint Staff, and the nine unified combatVerDate 11-MAY-2000 08:46 Jun 18, 2001 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\72077.TXT HGOVREF1 PsN: HGOVREF1
27

ant commands, as well as five OSD components that are geographically separated from Washington.

We began implementing the EFOIA after its passage in April

1997. We sent a memo to the combatant commands and those five

OSD components that are geographically separated from us and informed them of the EFOIA requirements and instructed them to

implement the legislation. The memorandum was also forwarded to

the DOD components, the military services, and the Defense agencies, and told them to prepare their regulations and implement the

legislation.

We, of course, published a revised DOD FOIA regulation, DOD

5400.7–R, in September 1998—and it is our understanding that we

were the first agency to change our regulation to include the

EFOIA amendments.

In response to—not necessarily as a result of the FOIA, the Department of Defense established a Web site called ‘‘DefenseLINK.’’

It has a wealth of information on it. It has links to the Defense

agencies, to the CINCs. It lists, among other things, the annual report of the Secretary of Defense to Congress, the chairman’s posture statement, and the DOD budget. It is constantly updated with

news releases and top stories and it has links to other sites.

One of the most valuable things, with regard to that Web site,

are direct links to ‘‘Gulf Link’’ and to the POW/MIA Web site,

which are high interest areas for the public so that they have access to those documents.

We did establish an electronic reading room on the Web site

which is accessible through DefenseLINK for the purpose of posting

frequently requested documents on the Web. We have posted on

documents on the electronic reading room. We are in the process

of updating that site to make it more user-friendly, and this redesigned Web site will allow better access to other Web pages, as I

mentioned—Gulf Link, Prisoner of War—for those high-interest

items that we consider the public may require.

We have not had sufficient requests yet to identify documents as

‘‘frequently-requested’’ FOIA documents to qualify for placement on

the Web. We have in place a high-speed scanner so images of qualified documents can be put on the Web. We have a reading room

in the Pentagon where we have paper documents for a number of

documents that have been released in the last 30 years, and we

plan on, with this high-speed scanner to scan the documents and

again make them available, on the Web. At the moment we are

awaiting final approval of a contract to get the technical experts to

install the software and to teach us how to do it.

Another provision to the legislation that my directorate has implemented is to make requesters aware that we have an e-mail address. We have a computer set aside in our office to receive electronic requests via e-mail, and at the moment that e-mail address

is on the Justice Department Web site, also. We only get about five

requests a week, but overall for an entire year that is 250-some requests that can come in by e-mail and that we will answer.

We, of course, answer by snail mail, not by e-mail, so that we

have a permanent record, and, if we release documents, so that we

have those documents on file.

28

We also provide training to the Office of the Secretary of Defense

and any of the Defense agencies or combatant commands who require or request it. Our goal is to provide at least two training sessions a year for the OSD staff.

The DOD, I believe, has been successful in satisfying the requirements of the EFOIA to provide records in any form or format requested by any person. We provide records, if requested, on floppy

disk, on CD-ROM, or magnetic tape.

Again, I believe that the DOD has taken appropriate steps within the means at our disposal to implement the EFOIA amendments. Resources in the form of additional personnel and funding

for server-based technology will be required to enable the DOD to

establish and maintain the services required. We will continue to

work with the IRM—information resource management—people

and our chief information officer who works with the Chief Information Officer Council to use their influence to give those of us involved in implementing the EFOIA the support we need.

Thank you, Mr. Chairman.

Mr. HORN. Thank you very much. We appreciate the statement.

[The prepared statement of Mr. McIntyre follows:]

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

Mr. HORN. We now will move to some questions here, and we’ll

start with Mr. Posner first.

Concern has been raised that a provision of the Taxpayers’ Bill

of Rights would supersede the Freedom of Information Act, allowing the Internal Revenue Service greater latitude in determining

what type of information they would release to the public.

Can you just tell us how concerned should we be about this

issue? And have any questions come up before you in Justice?

Mr. POSNER. Mr. Chairman, not yet. We understand there is a

Joint Committee report on this. I think the administration is going

to be commenting on that. I know Treasury is going to be issuing

some comments.

What I can pledge to you is the Department will look at this

very, very carefully, but I think that will be part of the multi-agency review process, of which I’m sure we will be a participant.

Mr. HORN. OK.

Mr. POSNER. But we have not had a chance to take a position

yet.

Mr. HORN. When do you estimate that decision will be made?

Mr. POSNER. I don’t have an answer for you. I know that Treasury is going to be preparing comments. My understanding is that

they are going to be doing it readily, quickly. I know a number of

people are looking at this now, but I will get back to you with more

detail.

Mr. HORN. Is OMB circulating that issue throughout the administration?

Mr. GOTBAUM. I can’t say that I know, Mr. Chairman, so why

don’t—with your permission, maybe the thing to do would be for

us to respond formally to tell you what the timeframe is on which

we will express an opinion.

Mr. HORN. Without objection, whatever documents you do send

us will be put at this point in the record.

[The information referred to follows:]

49

50

Mr. HORN. I assume the Justice Department would be making

this, because that is a legal decision, really, between the privacy

acts and the Taxpayer Bill of Rights and the Freedom of Information Act, and so it is a very touchy thing, I would think, that you

have to take a look at. So that’s one thing we will look forward to.

What percentage would you say of the Freedom of Information

Act requests—how close are they responded to the 20-day timeframe that was established in the Electronic Freedom of Information Act? Any data on that from either OMB or Justice?

Mr. POSNER. Within the Department, most of our—at least

many, and maybe even most of our components respond under the

20-day requirement. I know my office, the Office of the Associate

Attorney General, has an average processing time of 14 days, or

something like that. Many of our—it may even be the majority of

our components respond under the 20 days, and I believe our average, Department-wide, is under the 20 days.

Mr. HORN. How is the FBI doing?

Mr. POSNER. I’m glad you asked that question, because the

FBI——

Mr. HORN. Well, that’s what started this series of hearings 4

years ago.

Mr. POSNER. Right.

Mr. HORN. When you couldn’t get anything inside of 4 years.

Mr. POSNER. I understand that, Mr. Chairman. The Bureau has

made enormous strides with its backlog. I think the backlog has

now been reduced from 15,000 to 5,000. It really is an extraordinary success story. Their average processing time I think is still

high, because obviously you’ve got—you still have a backlog, but we

have devoted hundreds of additional people to this. The Attorney

General, herself, is personally committed to this. I have heard her

comment on it and I have heard her ask for continued action on

this. The backlog is being reduced sharply, and we’ve put a lot

more people, and the Bureau, obviously, is to be commended for

this. We’ve put a lot more people on this and the backlog is far less

than it was just 2 years ago.

Mr. HORN. Now, the FBI, did they ask for the resources to cut

that from 4 years down to a year or 20 days or whatever it is now?

Mr. POSNER. I’d have to go back and look at the funding requests, but my understanding is that we, at least a couple of years

ago, made some form of a request for additional resources for the

Bureau, and several—I think they now have something like 700

FTEs at the Bureau just devoted to FOIA, which I think is at least

a 100 percent increase from what it had been a couple years ago,

and I think the additional people have had the requisite impact

and the backlog is—— Mr. HORN. And are those 700 full-time equivalents, are they on

the electronic side, or is there a non-electronic side that is running

it up to 700?

Mr. POSNER. Well, a lot of people at the Bureau, of course, spend

time just responding to particular requests. To the extent that a request might be frequently requested and that it needs to get—you

know, and then if it was created after a certain date it would need

to be posted in the electronic reading room. I think that staff also

participates in that. So I don’t think that there is a separation beVerDate 11-MAY-2000 08:46 Jun 18, 2001 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 C:\DOCS\72077.TXT HGOVREF1 PsN: HGOVREF1
51

tween FOIA staff and EFOIA staff. I think they both have a role

in working on the EFOIA requirements and getting things posted

on the Web.

Mr. HORN. Mr. Gotbaum, does OMB add resources at all to these

when they are in the annual budget reviews? To what degree do

we use the budget review as a way to make sure the law is being

complied with?

Mr. GOTBAUM. Yes, Mr. Chairman, we do. I actually asked the

OIRA staff this question in preparation for this hearing, and what

they responded is that we know of no case in which EFOIA compliance, in particular, was the stated basis for a request in resources.

What we have and what we find is two different kinds of requests,

Mr. Chairman. One is requests for generic improvement in FOIA

compliance, like the one that Mr. Posner just described, and the

second is requests for improvement in systems response, Web site,

and other information technology.

As a result, I can’t give you a chapter and verse on the specific

piece. I can tell you that yes, we are actively engaged every year

in budget discussions on IT systems, both because of this legislation and because of Clinger-Cohen and because of GPEA because

of the various mandates that the committee has laid down, with

which we strongly agree.

Mr. HORN. So do any particular cases come in mind that have

bothered OMB because they aren’t anywhere near halfway doing

the goals set out so you don’t have any people that are like our

debt collection types, where they aren’t doing much, they’re just

talking?

Mr. GOTBAUM. No, Mr. Chairman. I’ve got to tell you that, in preparing for this hearing, I felt a lot more comfortable than I did before our FFMIA hearing, for instance.

Mr. HORN. Well, I’m glad you are comfortable, so we’ll see how

we go.

Mr. McIntyre, what is the Department of Defense response rate?

Mr. MCINTYRE. According to the DOD annual FOIA program report that we compile and submit to Justice and which is on the

Web.

For fiscal year 1999, for simple requests, the median age was 20

days, which meets the EFOIA time line. If it is a complex request,

the median age was 66 days, and if someone was granted expedited

access, the median age was 7 days.

Those are the simple figures for the entire DOD.

Mr. HORN. Does OMB have a similar document for the inventory

of the whole executive branch?

Mr. GOTBAUM. We haven’t provided the documentation. We keep

track of generic numbers of requests and the overall backlog. I

don’t know that we keep track of——

Mr. HORN. Well, what I’m after are, again, the data that the administration has to administer the law. The law says, ‘‘Get it done

in 20 days,’’ and electronic reading rooms and all the rest of it, and

it seems to me, if the executive branch is implementing the law,

why you, the OMB, should be the ones that have what apparently

the Department of Defense has done. That’s the kind of data— those kinds of data are what we are interested in, just looking at

the comparisons and there’s progress being made. We know you

52

can’t do everything at the same time, but we’d just like to know

who are the laggards, and that’s—you know, with Y2K as well as

with debt collection, we try to get a laggard panel and the good

boys and girls panel. So we just wonder what kind of data you

have.

Mr. GOTBAUM. Actually, I think the debt collection example is a

good example, Mr. Chairman, if I can compare them and contrast

them.

We view our job, as I said in the testimony, as one of providing

oversight and guidance. OMB will never be big enough, even in the

dreams of those of us who occasionally ask for additional resources,

for us to have enough OMB staff, for example, to review individual

Web sites. So what we do is we work on summary statistics and

we work on generic performance measures.

In the Debt Collection Act, what we set forth and are beginning

to get from agencies now is, ‘‘Tell us what your delinquent debt is,

whether the number is rising or falling.’’ And we then use that to

figure out where we have problem children.

In FOIA we have information on the number of requests and

whether that is rising or falling.

In the day-to-day business of management in Government, like

the Department of Justice we become aware where there are issues

that require additional resources, so, as a result, it is not a surprise

that DOD requires resources for this purpose. It is not a surprise

that Justice requires resources for this purpose.

What we don’t do, Mr. Chairman—and I think it is worthwhile

explaining why—is we don’t set up a separate reporting system for

each point of compliance.

Mr. HORN. Yes.

Mr. GOTBAUM. And the reason we don’t is we don’t think that we

should take the resources in OMB off of, say, GPEA, off of encouraging people to go paperless, to reviewing each one of the check

marks on the 20,000 or so Federal Web sites. We think it is more

effective, given our resources, to work by what I would characterize

as a ‘‘management by exception’’ process, which is we lay out guidance.

We know and the world knows that when there is a problem

with agency activity there is a place to go. And that’s why I think

it is important. I mentioned it and I thought it was important and

Mr. Posner mentioned it: when there is a problem with agency response under FOIA, people call the Department of Justice. That

doesn’t mean that the Department of Justice is charged legally

with mandating compliance, but it does mean that the Department

of Justice is aware of and provides, oversight and encouragement.

That, Mr. Chairman, is the most efficient and the most effective

way to get agencies, to comply.

Mr. HORN. Does OMB have the authority, if it wanted to, to delegate some of these functions to the Department of Justice, or do

you need a law? That’s what I’m getting to.

Mr. GOTBAUM. I don’t want to be definitive on what the law does.

In this case, Mr. Chairman, I will tell you that, for most of the

management functions of Government that you have entrusted

oversight to us, we have, in fact, worked via delegation with other

agencies. This works well whether it is an individual agency like

53

the Department of Justice on FOIA or the CIO Council or CFO

Council for improving grant simplification and grants management

or the Federal Credit Policy Working Group, for which Treasury,

in effect, is the information collection agent.

So let me just say at this point we don’t believe we need additional lawmaking in this area. We think this is an area where what

we hope we get from the Congress is what you’re doing right now,

which is serious periodic oversight and calling people on the carpet

and seeing what they’re doing.

Mr. HORN. Well, I agree with some that say that one Cabinet officer cannot really coordinate other Cabinet officers unless the

President makes them Assistant to the President or something, but

we’ve had that canard for 30 years around this town.

Mr. GOTBAUM. Mr. Chairman, I would say if that one Cabinet officer happens to be involved in the putting together of the budget,

at least he gets a hearing.

Mr. HORN. Good.

Let’s see here. OMB’s responsibilities are essentially the oversight function, I would think, within the administration. I guess I

would ask you—a number of you—what’s the concerns about the

State and Federal legislation and agency regulations with respect

to privacy policy? You know, that’s a major topic around here for

the last 3 years, and nobody can come to focus on it in the legislative branch, and I don’t think too much has happened in the Executive except for Ms. Shalala, who had the law. If we didn’t do anything, she could do something.

Mr. GOTBAUM. Mr. Chairman, I think it is fair to say that privacy is another area in which we are acting affirmatively on a sustained basis and which, again, the changes in technology and the

way both we have to do business and folks outside the Government

do business mean that we have to essentially reassess the rules in

context.

For example, a year-and-a-half ago we, on our own motion, created a position within the Office of Management and Budget, a coordinator for privacy, precisely because we wanted to make sure

that there was a locus for privacy discussions.

We then followed that up with a series of directives, with some

legislative suggestions, and some administrative suggestions, and

in some cases—and this may be where there is a question on your

part—we have consciously chosen to defer to the private sector on

some issues. We’ve said, ‘‘We are not going to heavy-handedly impose new restrictions on you unless you prove that you can’t, yourself, clean up yourself.’’

And so I think, Mr. Chairman, this is an area where we have actually put a lot of effort in, not just medical privacy but privacy in

the financial services context, privacy in how the Federal Government does its own business. What are the implications of the Privacy Act? The CIO Council, for example, created a working group

to review what we were doing and see what else we need to do.

I’d say that is an area, in fact, where there is a lot of motion,

even though not all of it is legislation, sir.

Mr. HORN. I’m going to yield now to Mr. Ose, the gentleman from

California, to consume such time as he wishes in terms of questioning.

54

Mr. OSE. Thank you, Mr. Chairman.

I think my question is—I have a retrospective and a prospective

approach here.

First of all, for each of you, I’d like to understand, from the agency’s performance, what are the best examples we have had so far

of the implementation of a FOIA? And then, conversely, where do

we need to improve? If you could give me some feedback on that,

I’d appreciate that.

Mr. McIntyre, at the DOD—— Mr. POSNER. I’ll be happy to respond from the Justice Department’s perspective.

I think a lot of agencies have done some exceptional work with

FOIA. The Department of Justice processed almost a quarter million FOIA requests last year, generating hundreds of thousands of

pages of information. Many of the large Federal agencies do likewise. I mean, there are thousands of FTEs in the agencies that are

devoted to—as I mentioned before, there are 700 FTEs just at the

FBI who do nothing but FOIA, and so I think all the agencies in

town generate a remarkable amount of information.

I think, as to the subject of today’s hearing, I think the agencies

are making excellent progress in putting information on the Web,

which we are all focused on and trying to do more of, and I think,

thinking prospectively, I think that’s where we want to be headed,

continue to head in that direction. This is, obviously, part of the

overall administration initiative to place more information on the

Web to the public, whether it is requested by FOIA or not.

You know, the Department has maybe about 100,000 pages just

in the, I think, in the FOIA reading rooms and accessible under our

FOIA Web page, plus, you know, another 100,000 or so pages available on our Web site anyway. That’s an extraordinary amount of

information to have been put on in a short period of time. I think

other agencies have done that.

So I think what I can tell you is that the agencies will continue

to focus on putting more and more information on the Web, which

we hope will, as Mr. Gotbaum described in the opening, reduce the

reliance on FOIA, reduce the reliance on the 20th century letters,

and hopefully we’ll have 21st century communication and information on the Web, and I think that is where the agencies are headed.

Mr. OSE. It would seem to me, in terms of the volume of the various agencies, like DOJ—you just referenced 200,000 pages in aggregate—in terms of the volume, perhaps the biggest challenge

that a citizen may face if they wanted to do research is seeing

whether or not that has already been done.

I know the chairman’s interest here is finding some means of expeditiously giving citizenry that information. In terms of cataloging

or indexing for reference purposes, how do you handle your portal?

Mr. POSNER. I’m sorry? How do you handle——

Mr. OSE. How do you handle the—a citizen who comes to your

portal and says, ‘‘I want to check out subject X.’’

Mr. POSNER. Well, you would—obviously, citizens could do this

differently, but you could get on the main Justice Department Web

site, then you could get onto our FOIA Web site, which is going to

direct you to—— Mr. OSE. You click right through?

55

Mr. POSNER. Click right through. WWW.USDOJ.GOV, main department Web site, FOIA right there. Click FOIA and you’re in the

FOIA area. Now you’re on the FOIA home site and then you can

click on any number of things. One of the things you can click on

are, reference materials, policy statements. It is going to direct you

to an enormous amount of information.

One of the things it is going to direct you to are our reading

rooms, which have frequently requested records, as that term is defined, so you can already get what, as you put it, others have requested, and there are a host of things that would fall under that

category.

Now, that doesn’t even include, obviously, what you can get off

the other links on the Department’s home page, so I’m just talking

about the FOIA home page.

I think I describe our Web site in detail in the prepared remarks,

but that is, I think, how many citizens will get access to Department materials.

You know, we also have press releases, briefs, all sorts of things

we put on our Web site.

Mr. OSE. How frequently do you update your cataloging of the

materials on the Web site?

Mr. POSNER. I’m pretty sure we update our Web site probably

virtually every day. I have to check to see how often we update the

FOIA portion of the Web site. I suspect it is changing virtually

daily, but, you know, I’d have to get more-detailed figures. But certainly we are always scanning things onto our Web site.

Mr. GOTBAUM. Mr. Ose, can I comment on that point?

Mr. OSE. Certainly.

Mr. GOTBAUM. One of the things we are discovering, when we

talk about the technological revolution that EFOIA is a part of, is

that indexing systems, too, are, being improved over time. So one

of the issues that we are now trying to deal with in the Federal

Government is to see whether or not there aren’t effective search

technologies and search engines that would permit one to find

things whether or not they have been indexed. One of the issues

that we have right now is that most of the way that our indexes

work is someone has to take a document, characterize it in some

way, shape, or form. It’s like the old Dewey Decimal System.

They’ve got to characterize it and then it becomes part of the index.

That means that we’ll be slow. It means that we are at the mercy

of whomever characterizes—how they characterize this.

Mr. OSE. Your point is well made. I don’t want to subject you to

the waste, fraud, and abuse problems at HCFA, but the categorization thing is a very serious issue. And I can tell you my biggest

problem—and I suggest that most citizens share this—is that when

I get on a Web site or when I go the a search engine, usually the

thing I’m looking for is number 50, so I’ve got to go through the

first page and the second page and the third page. So I want to

explore this a little bit further with you in terms of what you’re

doing, because I don’t have time to go through 49 things to find the

1 that I’m looking for.

How do you cross-reference, if you will?

56

Mr. GOTBAUM. That’s what I’m saying, Mr. Ose. I think it is

quite important that we, among other things, work to refine our

search methodologies.

Right now, although I will admit it is enormously frustrating to

find what you’re looking for as the 49th item on a list of 200. It

is—let’s be clear—a dramatic improvement over the zero that you

would get if you went with the old Dewey Decimal System approach and didn’t ask for it according to the Dewey decimal category.

And so I think it is an extremely important issue. It is one that

we are working on, and that the various agencies are working on.

In most cases what we’re finding is that they are turning from

what I’ll call a ‘‘categorize it as you post it’’ approach to one which

goes to full content searches—in other words, searching throughout

the document. This leaves it to the searcher to choose from among

those materials.

There is a cost to that. You’re right. It means that you’re going

to get a list of 200 things, whereas before you got a list of two. But

the benefit of that is that you will get that document which mentions the environmental remediation problem in northern California.

Mr. OSE. We don’t have any of those. [Laughter.]

Does your search engine—is it portal specific, or is it one that

you’re buying off the shelf?

Mr. GOTBAUM. Different agencies are using different software— a range of them, actually. And what we are trying to do now—and

I mentioned this when I started—right now we are mostly encouraging them to look aggressively at what is out there and what is

possible. What we’ve found is that, if we try to specify a particular

one, by the time every agency did it it would be obsolete.

Mr. OSE. Which agencies—going back to my original question,

which agencies, in OMB’s opinion, are doing a good job and which

agencies need improvement in this area?

Mr. GOTBAUM. I can’t give you—as I mentioned——

Mr. OSE. Mr. Gotbaum, that’s what you told me last time I asked

you a question, you couldn’t put your finger on anybody.

Mr. GOTBAUM. And I will try very hard to be consistent, at least

with what I said a week ago.

Mr. OSE. Perhaps I could submit a question in writing for Mr.

Gotbaum to respond to so that he doesn’t end up with the embarrassing situation of mentioning names, if you will.

Would that be acceptable, Mr. Chairman?

Mr. HORN. That would be very acceptable, and, without objection,

it will be put in the record at this point.

Mr. OSE. All right.

[The information referred to follows:]

Many agencies have been working hard to improve the EFOIA section of their

Web Sites. The Department of Justice, the Railroad Retirement Board, the Office

of Personal Management, and the National Aeronautics and Space Administration

have done an excellent job in their efforts to implement EFOIA.

Mr. OSE. Mr. Posner, let me shift my focus to you, if I may.

In your opinion, which agencies are doing, if you will, the best,

and which stand improvement?

Mr. POSNER. On their Web sites, or——

57

Mr. OSE. In handling the electronic processing of the Freedom of

Information Act.

Mr. POSNER. I don’t have names for you now. I can certainly say

there are obviously—and some agencies are doing a better job. We

are, obviously, proud of our efforts. Some of the smaller agencies

have done a terrific job, as well—FDIC and the Railroad Board I

think has a very good Web site. Unfortunately for you, I don’t have,

you know, sites that I can tell you right now I want to see improved. I can tell you, though, that there are such sites that we’d

like to see updated and made more user friendly.

We’ve issued an extraordinary amount of guidance. We’re encouraging agencies. They are heading in that direction. But I can tell

you that there are sites that we would like to see updated and

made more user friendly.

Mr. OSE. So tonight, when the chairman and I can’t sleep at 2:30

a.m., and we want to check this out, you would suggest, for the

agencies that are doing a good job in implementing this, we do look

at the FDIC portal or the Railroad portal or the Department of

Justice?

Mr. POSNER. You could look at the Department of Justice first if

you wanted. Yes, we think that’s a very good site.

Mr. OSE. Is there a simple code to access any of these Department’s Web site that has, say, common features up to the name of

the department? How does the average citizen listening to all this

or reading this transcript—what do they get out of it in terms of

how they access their Government?

Mr. POSNER. Well, I think, you know, if you typed in ‘‘Justice Department,’’ I don’t know where it would come up in the number

of—you know, one would hope it would come up in the top 10 rather than 50, but I think if you put in ‘‘Justice Department,’’ you

would get to our Web site pretty quickly.

Now, once you—we think our Web site is easy to navigate, but

one of the things you’re going to get pretty quickly, you’re going to

get into the Commerce Department Web site pretty quickly, you’re

going to get into the Treasury Web site pretty quickly, and you’re

going to get into the Transportation Web site pretty quickly. You’re

going to get in a lot of things pretty quickly.

So you type in ‘‘Justice Department.‘‘ You get onto our Web site

and it is going to act as a link, as a portal to many, many other

Federal agency Web sites. And I’m not even talking about Cabinet

departments. You can probably get onto the FDIC’s Web site pretty

quickly, perhaps in a matter of minutes.

Mr. OSE. What’s the one for Justice?

Mr. POSNER. It is WWW.USDOJ.GOV.

Mr. OSE. That’s .GOV?

Mr. POSNER. Yes, .GOV. That’s our main Web site, and you can

get onto a host of information from there.

Mr. OSE. So presumably, if you substitute the others for the

DOJ, that one little bit there, we’ll access that?

Mr. POSNER. That might be right. I don’t know the Web site addresses for all the other Federal agencies, but i’m sure—— Mr. OSE. Unless it is Department of Commerce, Commerce Department, and 18 other ways they can use two words.

Mr. POSNER. In that case it is DOC.GOV.

58

Mr. OSE. Mr. McIntyre, how about over at DOD?

Mr. MCINTYRE. The Defense Department Web site is

WWW.DEFENSELINK.MIL.

Mr. OSE. Slowly again.

Mr. MCINTYRE. OK. WWW——

Mr. OSE. I got that part. [Laughter.]

Mr. MCINTYRE. DEFENSELINK—D-E-F-E-N-S-E-L-I-N-K, one

word—.MIL.

Mr. OSE. M-I-L?

Mr. MCINTYRE. M-I-L. Right. We’re in the military domain.

Mr. OSE. And if you have——

Mr. MCINTYRE. Army, Navy, Air Force is .MIL.

Mr. OSE. OK.

Mr. MCINTYRE. DIA is .MIL.

Mr. OSE. Does your Web site have a FOIA click-through?

Mr. MCINTYRE. Yes.

Mr. OSE. Is there any feedback you’d care to give us as to the

quality or the means by which it is the leading FOIA portal or one

that could stand improvement? Don’t be bashful.

Mr. MCINTYRE. I represent the entire Department of Defense.

From a personal standpoint, some of the links to the services, to

the other Defense agencies, are a dream. They are just wonderfully

set up. Others are a little more complicated, not necessarily complete.

The Joint Staff has a marvelous Web site which is accessible

through DefenseLINK. It lists the chairman’s posture statement, it

lists their joint vision, 20/20, their guidance documents, their policy

statements in a broad sense.

Mr. OSE. How about the FOIA issue?

Mr. MCINTYRE. They’re under our FOIA, we are their FOIA office, so they don’t have a FOIA link. In general, information that

is available to the public, the departments, military departments,

have FOIA click-throughs on their sites also and access to electronic reading rooms. I do believe one does not have a direct clickthrough yet and—see, there’s a separation. The FOIA Web pages

are usually the IT folks. In the DOD sense it is the, you know,

command control communication. Our chief information officer is

responsible for the entire IT community and the Web site policies.

The DefenseLINK is maintained by the Assistant Secretary of

Defense Public Affairs, and we have—well, we ask them to make

sure that we have a direct click-through on FOIA, which gets us

to the FOIA page where our handbook is listed, our regulation is

listed. We actually have the 40 or 50 slides that our FOIA people

use when they give training on the entire FOIA, including the

EFOIA requirements.

Mr. OSE. Let me take my question a step forward, and this gets

to an issue that has been before Government Reform repeatedly,

having to do with the privacy issue.

On any of these situations, whether it is OMB or DOJ or DOD

or whomever, in terms of someone clicking in to check or to make

a FOIA request, what information is retained at the receiving end

in terms of who has made the request?

59

Mr. MCINTYRE. We have a complete file in our vaulted area of

the requester, the requester’s correspondence, e-mail, fax. Our

answer—— Mr. OSE. Otherwise, you wouldn’t be able to respond?

Mr. MCINTYRE. Right.

Mr. OSE. OK.

Mr. MCINTYRE. But there is nothing on the Internet that would

indicate who requested it.

Mr. OSE. All right. Same at the DOJ?

Mr. POSNER. Yes, I believe so. I don’t think there would be significant—I think there would be concern. We don’t post that the

chairman, for example, made a FOIA request. I don’t think we post

that on the Internet, but obviously we keep very detailed records

of who has made FOIA requests. That’s right.

Mr. OSE. It’s just we have had some problems recently with some

electronic data that we seem to misplace now and then, and we’re

interested in avoiding that situation in the future.

Mr. Chairman, I have no other questions. That was the particular area that I was interested in, and I appreciate your giving me

the time and the generous allotment.

Mr. HORN. Well, I was going to ask this next question, which is

probably dear to our hearts here.

In a recent Supreme Court Case, Public Citizen v. Carlin, the Archivist of the United States, the issue was National Archives’ disposal of original electronic records under the Records Disposal Act.

Journalists and citizens believe that the information was in the

public domain and, therefore, should be available.

So has this come to the attention of the Department of Justice?

Mr. POSNER. I believe we are aware of the case, and I think

we’ve thought about it at length, and—— Mr. HORN. Well, I assume you took it to court—— Mr. POSNER. Right.

Mr. HORN [continuing]. If you are acting—so somewhere someone

in the Department of Justice, one or more, might know something

about this.

Mr. POSNER. They do.

Mr. HORN. Yes. OK. What was their advice to the archivist?

Mr. POSNER. I don’t know the answer to that. To the extent that

there were privileged communications there, we would, obviously,

have some concerns. But I will followup on that particular case because, as you know, the Department was very involved.

Mr. HORN. Yes. Well, I’d like to hear from the Department of

Justice. Are they going to appeal that to the Supreme Court?

Mr. POSNER. I will find that out for you, Mr. Chairman, and get

back to you quickly.

Mr. HORN. OK. Let us know, because it could be that they are

not going to be.

Now, they’ve had a fire out there, one or two fires, as a matter

of fact, in their storage facilities out in Maryland, and the question

is: what were those records and what started the fire, etc?

Mr. Gotbaum, can you clarify that?

Mr. GOTBAUM. I’m sorry, Mr. Chairman. No, I cannot—— Mr. HORN. You mean it did not get to the high ears of the Office

of Management and Budget?

60

Mr. GOTBAUM. Let’s just say that I am not aware that we know

who started the fire or what was burned.

Mr. HORN. Well, it wasn’t Mrs. O’Leary. [Laughter.]

Does that help?

Mr. GOTBAUM. I know it wasn’t Mrs. O’Leary and it wasn’t a

large amount of ground brush in New Mexico. So if the question,

Mr. Chairman, is kind of what’s the implications of this fire—— Mr. HORN. Well, I’m just curious. For one, it is on electronic

records, on some of it. Now, how easy is it, except for a big magnet

I remember, to wipe out electronic records, and is there a worry

there by Justice and OMB when they see something like that happen?

[No response.]

Mr. HORN. Well, in other words, Justice hasn’t been asked to do

anything by either the White House or OMB or the Archivist on

this?

Mr. GOTBAUM. Not that I’m aware of, Mr. Chairman.

Mr. HORN. But you’re not aware of it. Can you check?

Mr. GOTBAUM. Yes, we will.

Mr. HORN. OK. Find out if there is and what are they planning

to do. We can have the Archivist up. We’re the oversight agency for

the Archives. He’s done a wonderful job, but these things happen,

and I’d like to know what are people doing about it so they don’t

keep happening.

You’re saying nobody you know of in the Administration is really

dealing with that. Did they just read it in the paper and go on? It

could have been their records, since we all use the Archives—legislative branch, executive branch. I’m not sure on what the Article

Three Judiciary do, but I assume sometimes materials are transferred to the Archives out of the Judiciary with cases and other

things.

So anyhow, that’s—we’d just like to know what you know about

it, since you are all under oath, and have you found out about that,

so let us know.

[The information referred to follows:]

61

62

Mr. HORN. We’ll hear from the next panel on that a little bit.

OK. I am going to now go to the second panel, because I hear

we’ve got some votes coming up and I’d like to get as much done

as we can so you can all go about your duties.

You can stay there. We’re just going to move some chairs up. If

you wouldn’t mind, I’d like some dialog here, and we’ll ask the— we have Lucy Dalglish, executive director of the Reporter’s Committee for Freedom of the Press; Dr. Patrice McDermott, policy analyst, OMB Watch; and Ian Marquand, Freedom of Information

Chair, the Society of Professional Journalists.

I think some of you have been before us before and you know the

routine of taking the oath, and if you have any assistants and they

are going to whisper in your ear, let them take the oath, too, because I don’t like baptisms going throughout the hearing.

We then will—when we call on you, we will put your written

statement in the record there and we’ll talk from it.

Is there anybody—assistants that are going to be whispering in

your ears? If so, bring them up and the clerk will take the names.

[Witnesses sworn.]

Mr. HORN. The clerk will note that we have the witnesses and

the supporters of—roughly six.

So, Ms. Dalglish, executive director of the Reporter’s Committee

for Freedom of the Press, we are glad to have you here. You’ve

done a lot of work on this over the years and we appreciate it.

STATEMENTS OF LUCY DALGLISH, ESQUIRE, EXECUTIVE DIRECTOR, THE REPORTERS COMMITTEE FOR FREEDOM OF

THE PRESS, ACCOMPANIED BY REBECCA DAUGHERTY, DIRECTOR, REPORTERS COMMITTEE FOI SERVICE CENTER;

PATRICE MCDERMOTT, POLICY ANALYST, OMB WATCH; AND

IAN MARQUAND, FREEDOM OF INFORMATION CHAIR, THE

SOCIETY OF PROFESSIONAL JOURNALISTS

Ms. DALGLISH. Thank you, Mr. Chairman. I’d like to thank you

for the opportunity to provide our views. As you said, my name is

Lucy Dalglish, and I am accompanied today by Rebecca

Daughterty, the director of the Reporters Committee FOI Service

Center for about the last dozen years.

The Reporters Committee for 30 years has helped reporters who

encounter legal difficulties in covering and gathering the news. We

run a hotline for reporters who face all types of legal obstacles in

their quest to gather the news, and we get more than 3,000 calls

a year to our hotline, and by far the greatest number of calls to

our hotline concern the inability of reporters to gain access to agency records.

When the Government fails to meet its freedom of information

requirements, reporters are greatly inhibited in their ability to report the news to the public. We believe that Congress was very forward-thinking and insightful in its passage of the EFOIA, and it

is an act that has greatly enhanced the public’s ability to gain access to Government information. Almost every agency, as you

heard already today, now has a Web site that can be visited by the

public.

Agency freedom of information officers have worked fairly hard

to identify data bases that could be useful to the public and make

63

them available online. Reporters routinely use these Web sites

rather than contact agencies directly for much of the stories that

they need to write.

Reporters that we have talked to in preparing for testimony

today have also said that Government Web sites are getting more

and more sophisticated, and, as a result, they are easier to use and

more useful, so the testimony that we give today is meant in no

way to disparage this enormously beneficial law that came into

being largely because this subcommittee secured its safe passage

through the House of Representatives. Please don’t construe our remarks on the implementation of this law as ingratitude, because

we remember when there were no Web sites to visit. But Web sites

are not the only answer to this issue.

The authors of this act intended not only to add requirements for

providing information electronically, but also to overcome the most

serious obstacles preventing the public’s successful enjoyment of a

Federal FOI program. These obstacles are, first of all, the lengthy

delays and, second, the over-broad interpretation of the privacy exemptions that have come to represent a virtual shut-out of information if it personally identifies an individual.

Let me first talk about the delays.

Many reporters simply will not use the FOI Act, claiming that

they cannot get information in time for it to be useful. This is very

unfortunate. If reporters who cover the Federal Government must

rely on the recollections of Government officials or upon leaks of information and not on Government records, they cannot adequately

report the news to the public.

Multi-track processing and expedited review that were in the

EFOIA amendments are sensible provisions and they can be effective. We have talked to reporters who have sometimes qualified for

expedited review of their request when timeliness was very important in getting stories to the public.

But what was intended to be a major tradeoff—and I remember

vividly when the discussions were going on back in 1995 and 1996

giving—the tradeoff that gives agencies lengthier deadlines for

processing requests but eliminating their ability to routinely invoke

extraordinary circumstances to excuse the delays, those requirements and that tradeoff seems to have been merely ignored by

most agencies.

The second thing I’d like to talk about is privacy. The first finding in the EFOIA is that the FOI Act is intended to establish and

enable enforcement of the right of any person to obtain access to

Government records, subject to exemptions for any public or private purpose. That finding was intended to limit the Government’s

unfettered use of the FOI Act’s privacy exemptions to categorically

protect information concerning named individuals.

Legal privacy protection has always involved a balance between

the intrusion on personal privacy and the public’s interest in disclosure, and agencies had considered that balance in determining

whether to invoke privacy exemptions.

Now, the scale was thrown out of balance somewhat in the 1989

Supreme Court decision that said the only public interest that

could be considered was the FOIA’s core purpose, which it said was

64

to reveal the operations and activities of Government. We disagree

with that finding and that court decision.

The legislative history to the FOIA states that the finding that

access is to be for any public or private purpose is intended to clear

up the misconception of the congressional purpose behind enactment of FOIA. In fact, I doubt that anyone here remembers, but

Senator Moss—— Mr. HORN. Excuse me right there. It was not Senator Moss, it

was Representative John Moss. Isn’t that correct, everybody that

knows the history on that.

Ms. DALGLISH. You’re right.

Mr. HORN. And it came out of Government Operations, now

known as Government Reform. And John Moss was a very vigilant,

hard-working, focused person—— Ms. DALGLISH. You’re absolutely right, Mr. Chairman.

Mr. HORN [continuing]. Who represented Sacramento, CA, basically.

Ms. DALGLISH. OK.

Mr. HORN. So that’s 30 years ago and you probably weren’t born

then, but—— Ms. DALGLISH. I think it was—— Mr. HORN. I’d appreciate it if you’d change your permanent and

have staff clean that up.

Ms. DALGLISH. No problem, Mr. Chairman. You completely embarrassed me.

Mr. HORN. It shows that journalists cannot always be right about

history.

Ms. DALGLISH. And I believe he got started at it in 1955.

Mr. HORN. Yes. That’s right. And he had a good assistant who

really also had focus.

OK, proceed.

Ms. DALGLISH. Representative Moss pushed early and hard for

enactment of the FOIA, and he was prompted to do so in frustration over his own inability to get Government information about

the performance of certain Postal employees. He would not be able

to get that information today.

Former Hostage Terry Anderson, who has probably appeared before your committee in the past, was told he could not have information about his kidnappers without their written release because

it would violate their privacy. This privacy exemption claim was

dropped after media exposure, and the information is now being

withheld because it is classified.

In Texas, Jack McNamara, the editor of the ‘‘NIMBY News,’’ could get no information on the former local sheriff who pled guilty

after Federal law enforcement agents seized his horse trailer containing 2,500 pounds of cocaine because disclosure would have

intruded upon the errant sheriff’s privacy.

In our view, if the public cannot learn about the individuals affected by or connected to the Government, it can know very little

about Government.

Now, in regard to the use of electronic information, we have

heard repeatedly from reporters that the value of the data bases

varies widely; that some agencies are likely to use the sites to promote themselves and to explain their missions, and that is very

65

useful to the public, in some sense, but the real data collected by

the Government that could be very useful to reporters is being

withheld in many circumstances.

In our assessment, the scientific agencies receive the most complimentary endorsements. There were many favorable comments

about the data available and searchable, for example, on the NASA

and NOAA sites. The Department of Transportation was praised

several times for its Web sites and for the accessibility of its data.

One reporter told us that the National Park Service actually consulted persons likely to use its Web sites when it constructed them.

But, as I said earlier, Web sites are not the only component of

compliance with EFOIA. The public needs to be able to find the

data bases and find the data bases indexed well enough to actually

be researched, and reporters need to be able to talk to the people

behind the data.

Sometimes just a simple question to an agency official will mean

the difference between a correct and an incorrect interpretation of

data, but usually the agencies are structured to keep most agency

personnel who can answer these questions out of contact with the

public, so if only your FOIA officer can answer a question, data interpretation may never occur.

Now, what we heard the most often was that, in using national

Government data for local stories, reporters often want to interpret

data for their own communities. We’ve heard repeatedly that Government information that is in PDF format—that is, when they

just essentially take a photograph of a document and post it, but

don’t allow you to crunch the numbers that are in behind the

data—this prevents a lot of very important reportorial interpretation of this information.

For example, the Department of Justice has uniform crime statistics and could make this raw data available. Instead, it is presented in a PDF file and is largely useless to others who could

crunch the data to describe how crime in their own communities

compares to crime elsewhere.

Similarly, from the IRS, a reporter cannot learn from posted information how much a given county gives to the Federal Government and how much it receives. We were told that the military

agencies have data bases that are easy to find and are well organized, but it is difficult to draw data for individual cities.

There were complaints that agencies such as the Small Business

Administration possessed data on loans in local communities, but

that the data does not appear on a Web site.

There also were complaints that the requirements to post frequently requested data are not met, and there was a suggestion

that frequently requested data should be interpreted to encourage

posting of data that is requested frequently for specific localities.

For example, if a certain record is requested for Tuscaloosa, then

Tacoma, then Texarkana, an agency should be able to infer that

other communities have an interest in posting the data for that

community, even though maybe only one person in each community

has requested that information.

Overall, reporters believed that the more information the agency

is willing to make available, the more useful the agency site, particularly if the information is indexed and readily available.

66

We appreciate the opportunity to present these views. I will definitely correct the transcript so that it is Senator John Moss.

Mr. HORN. Representative John Moss.

Ms. DALGLISH. Representative John Moss.

Mr. HORN. Yes.

Ms. DALGLISH. And Ms. Daugherty—— Mr. HORN. I take it you all have the ‘‘Biographical Directory of

Congress,’’ and he will be in there.

Ms. DALGLISH. You know, actually, Representative Moss and I— I’m ashamed to admit this—were both inducted into the FOIA Hall

of Fame in 1996, so I do know better and I apologize.

[The prepared statement of Ms. Dalglish follows:]

67

68

69

70

71

72

73

Mr. HORN. Let me ask you, on the bottom of page 3, where you

cite the case of McNamara v. Department of Justice, did that ever

go up for appeal, or did you——

Ms. DALGLISH. No.

Mr. HORN. It didn’t? So, in other words, you can still——

Ms. DALGLISH. It was a small town editor.

Mr. HORN. Well, I noticed that. The ‘‘NIMBY News’’ editor Jack

McNamara could get no information on the former local sheriff who

pled guilty after Federal law enforcement agents seized his horse

trailer containing 2,500 pounds of cocaine because disclosure would

have intruded upon the errant sheriff’s privacy.’’ You mean that

wasn’t appealed, or did they change——

Ms. DALGLISH. Ms. Daugherty actually spoke with them.

Mr. HORN. Really? Go ahead. Identify yourself, if you would.

Ms. DAUGHERTY. I’m Rebecca Daugherty, and I’m the FOI Service Center director, and I talked with Mr. McNamara when he was

trying to get this information. He was unable to appeal the case

simply because it was financially prohibitive for him to do so.

Mr. HORN. Yes. Well, somebody should have gone in, some pivotal, spirited agency, and made a case out of that. That’s so stupid.

See, what motivated in my head was, when I was a university

president, the U.S. Department of Education, did this to both

Pennsylvania State University and to California State University

at Long Beach, which I was heading. Here’s what they did—and

when I think of leading a corps of presidents to establish the Department, I just couldn’t believe the dumbness with which they operated. That is, they said, when they looked at the theses of both

institutions, either master’s or doctoral dissertations, they said we

could not have the public or anyone look at those theses unless

they had a release from the author because his privacy might be

hurt.

You know, that’s the dumbest thing I ever heard, because in the

whole history of higher education the whole purpose of a thesis is

to do original research, to have it available for professors, for the

public, for students, for whoever, and yet they said, ‘‘Oh, you’ve got

to have a privacy clearance.’’ That is so dumb I couldn’t believe it.

When I wrote the Secretary a rather hot letter, I got sort of a

bureaucratic response from—I know—the same guy that did the

stupidity. But that’s why it bothered me when I saw that. I

thought, ‘‘Boy, that’s one I’ve been through,’’ you know, because,

let’s face it, there have been a number of well-known figures in our

society where they have plagiarized in their dissertations or their

theses and no one would have discovered that if, once the person

submitted that thesis and dissertation and they know forever it is

locked up and no one can see it. That’s just wrong.

They should have had a student paper being backed by you. I

don’t know. Do you handle student papers?

Ms. DALGLISH. Our colleagues—we share an office suite with the

Student Press Law Center, and we often work together, and, yes,

that’s exactly the type of case we would take.

Mr. HORN. Yes. Well, I wish somebody had taken it, because I

bet you they still have the policy down there, but I haven’t heard

from it lately.

74

OK. Let’s move on then, and then we’ll get to the rest of the

questions.

We have Dr. Patrice McDermott, policy analyst of OMB Watch.

Mr. MCDERMOTT. Thank you, Mr. Chairman.

Just for the information of people in the room who may not know

who we are, OMB Watch is a nonprofit—— Mr. HORN. Yes, tell us, because you do a good job.

Mr. MCDERMOTT. Thank you—research organization that works

to encourage greater public participation in Federal Government

decisionmaking and to promote a more open, responsive, and accountable Government.

We have been engaged in the arena of public access to public information since the mid-1980’s and have issued a number of reports in this area, and we appreciate the opportunity to testify.

I am here today to talk about the report that we issued in January of this year, which is called, ‘‘The People Armed.’’ It is a followon report to one called, ‘‘Arming the People.’’ Before I go into the details of our study and our recommendations, though, I want to note OMB Watch has believed that the implementation of EFOIA in a way that is faithful to the intent of

Congress is fundamental to effective electronic Government and

governance. It is essential that the public be able to understand

how the Government organizes itself and its records in order for

the public to be able to truly hold Government accountable.

Because most Government records, whether digitally created or

not, are not online and are not searchable, the indexes and record

locators that are required by the amendments are the only key to

that information at this point.

I also want to note, because this is a hearing on the impact of

technology on access, I want to note the public interest community

is very concerned about recent and ongoing initiatives in both the

executive branch and in Congress to hollow out the scope of the

Freedom of Information Act by claiming, with no credible evidence

ever presented, that online access changes everything and puts us

all at terrible, if unspecified, risk.

The very technology that promises more accountability is being

raised as a specter to limit public knowledge about very real

threats, risk, and vulnerabilities, most of which can and should be

remedied.

Getting to the report—over a 3-month period between September

1st and November 31, 1999, OMB Watch examined 144 unique

Federal Government EFOIA Web sites at the 64 agencies that are

listed on DOJ’s FOIA site. I would note, and we do note in our report, that 64 agencies are not necessarily the sum total of all the

agencies that have begun to comply with the EFOIA amendments,

but it is impossible for us to tell and it was certainly impossible

for us to go look at every Government agency, but there are only

64 listed on DOJ’s site, and there are very many, many more Government agencies.

In each case, we searched for the existence and completeness of

the four major categories of information that you noted in your introduction that are required under the 1996 EFOIA amendments.

In all cases, we approached the Web sites from the prospective of

an average member of the public searching for information.

75

I would note that we have done this report twice now because,

Mr. Chairman, as you have noted, the administration has not been

paying attention to the details and there has been no other reporting done on the implementation. I do know that GAO is considering

doing a report Government-wide.

Mr. Chairman, you and Mr. Ose also have identified many of the

problems that the public has with finding either Freedom of Information Act information or, more specifically, Government records

online, and I would note that there is a difference between Government records and generic Government information, which the agencies are very enthusiastically putting online—reports and all sorts

of things.

Our study indicates that, overall, agency compliance with EFOIA

amendments continues to be overwhelmingly inadequate, and we

present four overriding reasons for this conclusion.

The first is that Congress still has not provided the necessary

funding to carry out the implementation of the amendments. OMB

still has not provided adequate guidance or assistance to agencies

during the implementation process.

No. 3, the encouragement to compliance, which the legislators intended to be vested in the Department of Justice, has been insufficient. We do agree and we do note that DOJ has provided excellent

training and information on how to meet the requirements of the

amendment, but this is clearly not sufficient, given the overall inadequacy of compliance Government-wide.

Finally, the fourth reason is that agencies have yet to make public access to Government information for accountability a priority.

When we released the report, we had four major recommendations. The first of these is that OMB must provide better guidance

and support to agencies by articulating exactly what information,

as indicated in the amendments and the legislative history, must

be included on agency Web sites to be in compliance, and by creating templates for consistent language and format Governmentwide.

Pursuant to Mr. Ose’s question and to yours, it is not possible

to consistently find, by using a single format or a single template,

FOIA information on agency Web sites.

OMB needs to establish a clear definition of what constitutes a

repeatedly requested record and, most importantly, they need to

explain how EFOIA fits into the larger framework of Federal information policy.

OMB should follow what it has done in the area of privacy on

agency Web sites and provide leadership in the area of access.

In regard to this first recommendation on OMB, we commend

OMB for finally recognizing in its April 2000, proposed revisions to

Circular A–130, the significant problems with its memorandum M–

9809, which told agencies that a ‘‘GILS—’’ or Government Information Locator Service—‘‘presence was sufficient to comply with the

law.’’

Because, as we have reported elsewhere, OMB has been dilatory

in its treatment of the GILS mandate in the 1995 Paperwork Reduction Act, most agencies have no or no useful GILS present;

thus, following OMB’s recommendation on this matter has put

some agencies out of compliance with the statute.

76

Our second major recommendation is that agencies’ information

must be better organized to make locating records online a userfriendly experience.

Third, enforcement mechanisms for agency noncompliance must

be established immediately. Currently, agencies that do not meet

the requirements outlined in the EFOIA amendments are neither

identified nor penalized for noncompliance.

Fourth, Congress must provide regular oversight. Since the passage of the amendments, there has been only one other hearing on

the implementation, and that was yours, Mr. Chairman. We commend you for that.

We also had five lesser recommendations.

Agencies that have decentralized responsibility for EFOIA implementation must provide a clear procedure for implementation in

order to ensure consistency across the agency. There are a number

of major agencies that have multiple sites and have decentralized

it to their divisions, and it is very, very inconsistent.

Agencies must make categories of EFOIA compliance, handbooks,

indexes, repeatedly requested records easily identifiable online and

linked from one spot.

All agencies should follow the lead of those that provide forums

for submitting FOIA requests online.

All agencies should provide access to their information in text

only, as well as graphics versions, for users without access to hightech equipment.

And, fifth—where we agree with OMB—the goal of EFOIA

should be to make so much information publicly available online

that Freedom of Information Act requests become an avenue of last

resort.

Thank you, and I will be happy to answer any questions that you

might have.

Mr. HORN. Thank you. That’s a very well-organized presentation

and you make some very good suggestions.

[The prepared statement of Ms. McDermott follows:]

77

78

79

80

81

82

83

84

Mr. HORN. Mr. Ian Marquand is the Freedom of Information

Chair for the Society of Professional Journalists. We are glad to

have you here.

Mr. MARQUAND. Thank you, Mr. Chairman. And, just for the

record, it is Ian Marquand.

I would like to thank my professional colleagues at the Reporters

Committee and OMB Watch for the fine work they do. The Society

of Professional Journalists is largely a volunteer organization and

I am a volunteer committee Chair.

I do want to note, just in deference to the committee, that not

only is the late Representative Moss in our FOIA Hall of Fame and

not only is Lucy Dalglish in our FOIA Hall of Fame, but also Samuel Archibald, who was the chief of staff for Representative Moss,

and I believe Representative Moss was your predecessor. We also

have Senators Leahy and Brown in our Hall of Fame that sponsored the EFOIA legislation, and we thank you for your help in

getting that passed.

FOIA is for all Americans, and it is pretty apparent that Americans use the law. In 1998, SPJ members in California conducted

what I believe is the only public opinion poll on access to government records, and, even though it was a poll on State records, not

Federal records, we found it was an overwhelming number of those

surveyed favored increased and as much access to government

records as possible. We have no reason to doubt they would feel the

same way about Federal records.

However, a recent ‘‘Washington Monthly’’ article by Michael

Doyle noted that journalists account for a very small percentage of

FOIA requests, and we wonder why that is. I think the No. 1 reason, as Lucy noted, is time. It takes a long time to get requests fulfilled.

A television managing editor wrote me recently to say, ‘‘If I have

to file a FOIA request, I eliminate any hope of that information for

New York stories I will file in the near future. Anything that would

cut down the required response time would help.’’

In short, it appears that when reporters need information from

Federal agencies, they may be using personal contacts rather than

FOIA.

Now, we do appreciate the expedited request portion of EFOIA.

Some agencies do appear responsive to those expedited requests.

For example, ‘‘El Nuevo Dia,’’ Puerto Rico’s largest-circulation daily

newspaper, was able to obtain expedited processing for many of the

records it requested about the Navy’s live ammunition practice on

the Island of Vieques. Expedited requests may enable a news organization with urgent FOIA requests to obtain processing ahead of

the backlog; however, the rate of processing still takes far longer

than the timeframe anticipated by Congress.

In ‘‘El Nuevo Dia’s’’ case, many of the records requests granted

expedited processing still were not processed until 3 months to over

a year later.

The Internet should make time delays less of an issue and put

information and documents into the hands of anyone with access

to a computer, but it is clear that implementation of EFOIA is an

unfinished story.

85

My National Society president, Kyle Neideprun, sent me this: ‘‘The Society appreciates the potential of EFOIA, but realizes now,

through the experience of working journalists, that the reach of the

law is limited.’’ Many agencies, in an attempt to appear in compliance, are simply posting anything and everything an agency produces, without

any particular logic. The information being posted also is not reliable, and in some instances it is inaccurate.

A case in point, the U.S. Environmental Protection Agency posts

scores of data bases. Air quality data is posted. In at least one instance, the data indicated that Indiana had worse air quality readings than southern California. A reporter calling up the data would

have drawn such a conclusion, but it would have been incorrect. A

check going back several calls to find the employee responsible for

posting the data would indicate that the data isn’t posted with

qualifiers—the footnotes to explain why such a comparison would

have been flawed. EPA officials told us it is not their responsibility

to make sure the data is read correctly, only that it appears.

In 1998, SPJ member Jennifer LaFloor, then working for the ‘‘San Jose Mercury News,’’ wrote an article for our national magazine, ‘‘Quill,’’ and outlined many of the same concerns that Ms.

McDermott’s organization has followed up with this year, namely

that agencies were not implementing EFOIA completely. We have

a copy of that article for your review.

I did make an electronic query of journalists in preparation for

today’s hearing. I also got a complaint about PDF file formats from

a journalist in Idaho. Says this journalist, ‘‘PDF files make it

uniquely difficult to analyze information in data bases or spreadsheets.’’ He pleads that PDF files be made available in text format.

I did learn from a reporter in my home State of Montana that

persistence with agencies can pay off. When this reporter was told

by Yellowstone Park and the U.S. Forest Service that his request

for data bases could not be fulfilled, he kept asking. He even went

to the software provider in one instance. Both entities eventually

provided the information in usable electronic formats, as the law

requires.

Now, the very access to information EFOIA makes available is

also creating fear in some sectors of Government. Now, SPJ has

helped sound the alarm on Federal proposals which we believe

would erode FOIA and impair the public’s right to know. I would

like to submit a number of our FOI alerts from the past year, including alerts on medical privacy rules at HHS, worst-case scenario

regulations at EPA, and reports on spending by the intelligence

community.

Mr. HORN. Without objection, they will be put at this point in the

record.

Mr. MARQUAND. And, finally, I would be remiss—and I thank

you, Mr. Chairman, for bringing up H.R. 4163, the Taxpayer Bill

of Rights, passed in the House, now awaiting action in the Senate,

a bill that, for all of its good intentions, appears to us to make the

Internal Revenue Service exempt from the Federal FOIA.

In short, Mr. Chairman, Congress has set a high standard. On

behalf of my organization, I urge you to use your authority to ensure that executive agencies meet that high standard.

86

And I also would be remiss to say we need the Federal Government to set a good example for the States [sic], because we are

finding many, many problems in the States that a law such as

FOIA would probably take care of.

My full written testimony is at your disposal.

Thank you very much.

Mr. HORN. A wonderfully written statement, and we appreciate

that input, and especially from a practicing journalist.

[The prepared statement of Mr. Marquand follows:]

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

Mr. HORN. We have a vote about to come. It started at 3:32. It

is 15 minutes, so I’m going to have to leave in a recess, but let me

ask our friends in the first panel—Mr. Gotbaum, you might want

to join us. Mr. McIntyre, you might want to join us. Then we can

answer some of the questions here. Mr. Posner, you might want to

join us.

Some comments were made about the role of the OMB, for example. Maybe we can get an answer right now.

Let me, in the meantime, say, are you familiar—and this would

be panel one and two—are you familiar with the Department of Defense’s 1998 policy change that limited the Department’s Internet

documents to those of general public interest? Many who use the

Electronic Freedom of Information Act to obtain information have

said that a number of documents were pulled from the DOD Web

site. What justifies a decision such as this that appears to go

against the Electronic Freedom of Information Act? Do we have

any knowledge on that one way or the other?

Is Mr. McIntyre still here?

[No response.]

Mr. HORN. Well, we’ll send it to him to put the answer in the

record on that.

There were also some of the comments of members on panel two

as to the degree to which OMB ought to be doing more in the administration of this law. I don’t know if you listened to that, but

if you have any remarks, let us know.

Mr. GOTBAUM. If you’d like, Mr. Chairman, we’d be happy to submit an answer for the record.

Mr. HORN. You’d like to submit? OK. Without objection, the

statement from the representatives of the Office of Management

and Budget will be put in the record at this point.

[The information referred to follows:]

123

124

125

126

Mr. HORN. What else did we have?

Ms. DALGLISH. Do we get to respond to their responses?

Mr. HORN. Well, go ahead. Maybe we’ll add their responses to

your responses. We’ll keep the record open for all of you, so you

might want to boil down some of yours and ask the question, and

then we’ll get an answer out of OMB.

Mr. POSNER. And, Mr. Chairman, on behalf of the Department of

Justice, we will be submitting a number of written comments, as

well.

Mr. HORN. OK. We’d welcome that, and we appreciate it, having

your cooperation.

So you want to answer these questions, then, and you’d just as

soon go back to the office, or what?

Mr. GOTBAUM. Mr. Chairman, partly because of time we’d be

happy to.

Mr. HORN. Yes. Well, we’ll send you some of the questions, and

just give us your best judgment on it. We’ll put it in the record at

this point.

I have to run for a vote, so I want to thank the staff that worked

on this hearing: J. Russell George, staff director, chief counsel,

standing up there; Heather Bailey, staff professional working with

this particular issue; Bonnie Heald, director of communications;

Bryan Sisk, clerk; Will Ackerly, intern; Chris Dollar, intern; Meg

Kinnard, intern. We thank you all for that. The minority staff: Trey

Henderson, counsel; and Jean Gosa, minority clerk; and the official

reporter of debates is Art Emmerson.

We thank you all. We are adjourned.

[Whereupon, at 3:43 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Jim Turner and additional information submitted for the hearing record follows:]

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

Æ