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22–705 PDF 2005

INFORMATION POLICY IN THE 21st CENTURY: A

REVIEW OF THE FREEDOM OF INFORMATION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

FINANCE, AND ACCOUNTABILITY

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MAY 11, 2005

Serial No. 109–46

Printed for the use of the Committee on Government Reform

(

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

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

GINNY BROWN-WAITE, Florida

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, FINANCE, AND ACCOUNTABILITY

TODD RUSSELL PLATTS, Pennsylvania, Chairman

VIRGINIA FOXX, North Carolina

TOM DAVIS, Virginia

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

EDOLPHUS TOWNS, New York

MAJOR R. OWENS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

EX OFFICIO

HENRY A. WAXMAN, CALIFORNIA

MIKE HETTINGER, Staff Director

TABETHA MUELLER, Professional Staff Member

NATHANIEL BERRY, Clerk

ADAM BORDES, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on May 11, 2005 ............................................................................... 1

Statement of:

Smith, Jay, chairman, Newspaper Association of America and president,

Cox Newspapers, Inc.; Ari Schwartz, associate director, Center for Democracy and Technology; and Mark Tapscott, director, Center for

Media and Public Policy, the Heritage Foundation ................................... 125

Schwartz, Ari ............................................................................................. 136

Smith, Jay .................................................................................................. 125

Tapscott, Mark .......................................................................................... 146

Weinstein, Allen, Archivist of the United States, accompanied by Michael

Kurtz, Assistant Archivist for Records Programs, National Archives

and Records Administration; Carl Nichols, Deputy Assistant Attorney

General, Federal Programs Branch, Civil Division, U.S. Department

of Justice; and Linda Koontz, Director of Information Management,

Government Accountability Office ............................................................... 47

Koontz, Linda ............................................................................................ 78

Nichols, Carl .............................................................................................. 58

Weinstein, Allen ........................................................................................ 47

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

Cornyn, Hon. John, a Senator in Congress from the State of Texas,

prepared statement of ................................................................................... 7

Koontz, Linda, Director of Information Management, Government Accountability Office, prepared statement of ................................................. 80

Maloney, Hon. Carolyn B., a Representative in Congress from the State

of New York, prepared statement of ........................................................... 44

Nichols, Carl, Deputy Assistant Attorney General, Federal Programs

Branch, Civil Division, U.S. Department of Justice, prepared statement

of ..................................................................................................................... 61

Platts, Hon. Todd Russell, a Representative in Congress from the State

of Pennsylvania, letter dated May 9, 2005 ................................................. 3

Schwartz, Ari, associate director, Center for Democracy and Technology,

prepared statement of ................................................................................... 138

Smith, Jay, chairman, Newspaper Association of America and president,

Cox Newspapers, Inc., prepared statement of ............................................ 128

Tapscott, Mark, director, Center for Media and Public Policy, the Heritage Foundation, prepared statement of ...................................................... 148

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

of New York, prepared statement of ........................................................... 39

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 25

Weinstein, Allen, Archivist of the United States, prepared statement

of ..................................................................................................................... 51

(1)

INFORMATION POLICY IN THE 21st CENTURY:

A REVIEW OF THE FREEDOM OF INFORMATION ACT

WEDNESDAY, MAY 11, 2005

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

FINANCE, AND ACCOUNTABILITY,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:05 p.m., in room

2247, Rayburn House Office Building, Hon. Todd Russell Platts

(chairman of the subcommittee) presiding.

Present: Representatives Platts, Waxman, Towns, Duncan, and

Maloney.

Staff present: Mike Hettinger, staff director; Dan Daly, counsel;

Tabetha Mueller, professional staff member; Jessica Friedman, legislative assistant; Nathaniel Berry, clerk; David Rapallo, minority

counsel; Adam Bordes, Anna Laitin, and David McMillen, minority

professional staff members; and Jean Gosa, minority assistant

clerk.

Mr. PLATTS. A quorum being present, this hearing of the Government Reform Subcommittee on Management, Finance, and Accountability will come to order.

The information age has given us unprecedented capabilities to

disseminate and collect information. With the worldwide deployment of the Internet, information is available from around the

globe 24 hours a day, 7 days a week. It has changed the way citizens get information from their government and how government

serves its citizens.

At the same time, technological advances subject us to new

threats, both to our security and our right to privacy. One could

argue that effective information policy in government has never

been more important than it is today and that the balancing act

has never been more difficult.

The Freedom of Information Act [FOIA], was signed into law almost 40 years ago in 1966. Enacted after 11 years of debate, FOIA

established a statutory right of public access to executive branch

information.

FOIA provides that any person has a right to obtain Federal

agency records. Originally, the act included nine categories of information protected from disclosure. Congress has added additional

exemptions over time. Recent legislative proposals would make sigVerDate 11-MAY-2000 11:03 Sep 08, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 D:\DOCS\22705.TXT HGOVREF1 PsN: HGOVREF1
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nificant changes to the exemptions and create new deadlines for

agency compliance.

As Congress considers changing FOIA, it is important to understand the underlying intent of the act and how recent changes in

technology and national security have affected FOIA implementation. Balancing the need for open government with the need to protect information vital to national security and personal privacy is

a constant struggle. Federal departments and agencies are operating in the post-September 11 information age and face 21st century

security information management and resource challenges.

This hearing will give the subcommittee members an opportunity

to hear the Department of Justice, the agency responsible for providing for the guidance Government-wide, and the National Archives and Records Administration which faces a huge task of electronically archiving millions of Government documents. Witnesses

from these agencies will testify on their experience implementing

FOIA.

The subcommittee will also hear from FOIA requesters to understand the opportunities to improve the process for obtaining information.

We are pleased to have two panels of distinguished witnesses

here today. Our first panel includes the honorable Allen Weinstein,

Archivist of the United States from the National Archives and

Records Administration and Mr. Carl Nichols, Deputy Assistant Attorney General at the Department of Justice Civil Division, Federal

Programs Branch. These executive branch witnesses are joined by

Ms. Linda Koontz, the Director of Information Management for the

Government Accountability Office.

Our second panel will include Mr. Jay Smith, chairman of the

Newspaper Association of America and president of Cox Newspapers; Mr. Ari Schwartz, associate director of the Center for Democracy and Technology and Mr. Mark Tapscott, director of the

Center for Media and Public Policy of the Heritage Foundation. We

certainly appreciate all of our witnesses being here today and we

look forward to your oral testimonies.

Before I recognize our ranking member, Mr. Towns, I have two

items I’d like to submit for the record. My esteemed colleague, Mr.

Shays of Connecticut, has asked to have information included on

the use of FOIA exemptions by the National Science Foundation.

[The information referred to follows:]

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Mr. PLATTS. Senator Cornyn of Texas has requested that a statement be inserted into the record as well.

Without objection, it is now ordered.

[The prepared statement of Senator Cornyn follows:]

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Mr. PLATTS. It is now my pleasure to yield to the ranking member, the gentlemen from New York, Mr. Towns, for the purposes of

an opening statement.

Mr. TOWNS. Thank you very much, Mr. Chairman. What I would

like to do is to yield to the ranking member of the full committee.

Mr. WAXMAN. You may go ahead.

Mr. TOWNS. Well, I’m allowing you to go first.

Mr. PLATTS. Mr. Waxman from California is recognized.

Mr. WAXMAN. Well, I thank you very much for yielding to me. I

would have waited my turn, but I’ll take your generosity.

Thank you, Chairman Platts, for holding today’s hearing. Our

subject today is the law that keeps Government open and accountable, the Freedom of Information Act. The premise of the Freedom

of Information Act is that our democracy depends on informed citizens. Yet over the past 4 years we have witnessed an unprecedented assault on the Freedom of Information Act and our Nation’s

other open Government laws.

The Bush administration has undermined the Nation’s sunshine

laws while simultaneously expanding the power of Government to

act in the shadows. The presumption of disclosure under the Freedom of Information Act has been overturned. Public access to Presidential records has been curtailed.

Classification and pseudo-classification are on the rise. These

trends are ominous and they are carefully documented in a report

my staff prepared last fall.

I would like to ask unanimous consent to make this report part

of the hearing record.

Mr. PLATTS. Without objection it is so ordered.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Mr. WAXMAN. A bipartisan group of Senators and Representatives have taken important steps to improve the operations of the

Freedom of Information Act. They have introduced two bills that

aim to speed up agency response to FOIA requests and fix weaknesses in the act.

I look forward to this committee’s consideration of the two bills

and hope that we will be able to work together to improve the

Freedom of Information Act. But the Bush administration’s wholesale assault on open Government demands that Congress do more.

This week I will be reintroducing the Restore Open Government

Act. The legislation restores the presumption that Government operations should be transparent. It overturns President Bush’s Executive order curtailing public access to Presidential records. It prohibits the executive branch from creating secret Presidential advisory committees and eliminates unnecessary secrecy at the Department of Homeland Security.

In addition, this year’s version of the bill addresses the disturbing new trend of agencies relying on undefined new pseudo-classifications to protect information from public disclosure. The best

known of these designations are ‘‘sensitive but unclassified’’ and

‘‘for official use only.’’

But there are many others. Most of these designations have no

statutory or regulatory basis, yet they are being used to keep important information from the public. Open and accountable government is the bedrock principle of our democracy. Secrecy breeds arrogance and abuse of power. Sunshine fosters scrutiny and responsible government. The bill I will introduce this week restores the

presumption that a strong government must remain open to scrutiny.

Mr. Chairman, I want to thank you again for holding this hearing and for your interest in the Freedom of Information Act and I

want to thank Ranking Member Towns for yielding his time.

Mr. PLATTS. Thank you, Mr. Waxman. I appreciate the ranking

member keeping me in proper order of seniority. I didn’t see you

come in, Mr. Waxman. It was appropriate that you were recognized

next.

I now yield to Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman, for holding

this hearing on Government Information Policy and the Freedom

of Information Act. It is a pleasure to have such a broad range of

witnesses. Their diverse views will afford us a better context for

balancing the interests of government accountability and national

security.

Like most of us I believe the cornerstone of a free and democratic

society rests upon the principle of public access to governmental activity. By ensuring such access to governmental institutions and

deliberations we are less likely to make ill-advised decisions concerning the welfare of our country and more accountable for the decisions we have made.

We must also reassess the deficiencies associated with processing

FOIA requests. A more technological advanced public information

process should result in improvement to the timely and efficient

disclosure of agency records.

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That doesn’t, however, seem to be what has happened. In 2004,

agencies reported having 160,000 outstanding FOIA requests. From

the prior 2003 cycle, an increase of about 15 percent. Another way

to put it: We are going in the wrong direction.

Nevertheless, the sheer volume of requests is having a severe impact on agency resources and information technology components

and it may be impacting the time it takes for certain agencies to

complete FOIA requests. In 2004 alone the Federal Government received roughly 4 million FOIA requests, an increase of 25 percent

over 2003.

Knowing this, perhaps the agency community should reexamine

its methods of utilizing information technology in the FOIA process.

In closing, I look forward to hearing from both panels. I hope our

subcommittee can become a catalyst for more effective and practical public information policies.

Mr. Chairman, at this time I would like to submit a letter written by a constituent of Senator Leahy’s named Charlotte Dennett.

Her correspondence details the difficulty many individuals face in

receiving timely and complete responses from the Government to

their FOIA request. I am asking unanimous consent that this be

included in today’s hearing record.

Mr. PLATTS. Without objection, it is so ordered.

[The prepared statement of Hon. Edolphus Towns follows:]

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Mr. TOWNS. On that note I yield back.

Mr. PLATTS. Thank you, Mr. Towns.

We now recognize the gentlelady from New York, Mrs. Maloney,

for purposes of an opening statement.

Mrs. MALONEY. Thank you very much. I request permission to

place my statement in the record.

Mr. PLATTS. It is so ordered.

Mrs. MALONEY. I would like to be associated with the comments

of my two colleagues and mention that along with Steven Horn in

1996 we authored and passed the electronic Freedom of Information Act of 1996, trying to move FOIA into the 21st century. Some

agencies have been better than others in complying.

But I feel very, very strongly that the law needs to be strengthened. Many constituents will say that they file a Freedom of Information Act on such basic things as the Government taking of their

property and they can’t get a response for years and years and

years and years and that when they do get a response threefourths of it is blacked out and it says we have made a decision

that you don’t have a right to see this.

I think one thing that we have to work on in this committee and

others is, in addition to the two bills that Mr. Waxman mentioned

and I am co-sponsoring the bill that he is introducing which I

strongly support, is some type of review when government makes

a decision to darken out information and not supply it to the public.

In some cases it has been whistle-blowers who can’t even get the

information of why they lost their job or whatever. I think that a

strong government is one that allows people to see what is going

on, that can make it stronger and make better decisions.

But I think we need a level to oversee the governmental decisions when they decide to black out entire sections and that all you

are left with is, I made a phone call to someone, as opposed to why

the action took place in the first place. So I think it is a very important law, but I think it is one that definitely needs to be

strengthened.

I yield back and would like to place in the record my statement.

Thank you.

Mr. PLATTS. It is so ordered. Thank you, Mrs. Maloney.

[The prepared statement of Hon. Carolyn B. Maloney follows:]

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Mr. PLATTS. We will now move to our first panel of witnesses. I

would ask each of our witnesses in this first panel and any others

who will be advising you as part of your testimony here today to

rise and be sworn in with the oath.

[Witnesses sworn.]

Mr. PLATTS. Thank you. You may be seated. The clerk will note

that the witnesses affirmed the oath. We appreciate your written

testimonies that you provided. We would ask that you try to stay

within about a 5-minute timeframe for your opening statements

here today.

Dr. Weinstein, I know that you are going to have to leave after

the presentations of the panel. We appreciate your being here for

your testimony and your insights and your staff who will remain

with us.

STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE

UNITED STATES, ACCOMPANIED BY MICHAEL KURTZ, ASSISTANT ARCHIVIST FOR RECORDS PROGRAMS, NATIONAL

ARCHIVES AND RECORDS ADMINISTRATION; CARL NICHOLS,

DEPUTY ASSISTANT ATTORNEY GENERAL, FEDERAL PROGRAMS BRANCH, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE; AND LINDA KOONTZ, DIRECTOR OF INFORMATION

MANAGEMENT, GOVERNMENT ACCOUNTABILITY OFFICE

STATEMENT OF ALLEN WEINSTEIN

Mr. WEINSTEIN. Thank you, Mr. Chairman. Good afternoon, Mr.

Chairman and members of the subcommittee and subcommittee

staff. I am Allen Weinstein. I am Archivist of the United States.

It is my distinct pleasure to be with you this afternoon.

I am accompanied today by Dr. Michael Kurtz, Assistant Archivist for Records Programs at the Archives. Dr. Kurtz has responsibility for managing the bulk of our FOIA operations. He is very

experienced in the implementation of FOIA in the National Archives.

As we discussed last week, Mr. Chairman, I am most appreciative of your understanding regarding my schedule today. I am

actually, at this moment, chairing a board meeting of the National

Historic Publications and Records Commission, NHPRC, at the Archives. So I am going back to that. I will have to excuse myself

after my opening statement, after listening to the other opening

statements.

But this is such an important subject and it is my first invitation

to testify before the subcommittee, I wanted to make every effort

to attend. Dr. Kurtz will stay. He will answer any operational questions that you might have regarding our FOIA implementation.

Now, Mr. Chairman, as I told you in your office, I have a rather

unique perspective on FOIA, which is that I was a FOIA litigant

long before I was implementing FOIA. Back in the 1970’s, with the

assistance of the American Civil Liberties Union, I sued the Federal Bureau of Investigations for its files on the Alger Hiss case.

As it turned out, when I received those files in 1975 and 1976

it was one of the first times that major files of historical significance were released by the Bureau to a litigant, maybe the first

time, I don’t really know. So I have watched the experience that

48

way. I have been a litigant. I have watched others. I have used the

materials under FOIA request. I find myself now in the position of

implementing FOIA matters.

To summarize my statement, Mr. Chairman, the National Archives and Records Administration is our Nation’s record keeper,

as you know. The National Archives was created in 1934 and our

mission is to preserve and maintain the permanently valuable

records of the Government of the United States, records that document the rights of citizens, the actions of Government officials and

the national experience.

We acquire, preserve and make available for research records of

enduring value created or received by organizations of the Federal

Government. We have been making records available to the public

since long before FOIA was adopted. The vast majority of NARA’s

holdings are unrestricted and available for research by the public.

By one count—I can’t verify this, I have only been there 21⁄2

months—but by one count there are 1 billion documents alone in

the National Archives Building downtown. I am going to count

every one of those so I will become an expert.

Mr. PLATTS. Mr. Weinstein, would you just bring the mic a little

closer to you? We are having sound trouble.

Mr. WEINSTEIN. I’ll be back to the committee once I have counted

all those documents to assure that there are 1 billion there. If there

are any missing, you will be the first to hear about it.

Now, the vast majority of our holdings, as I said, are unrestricted, available for research. Many records are open for research

at the time they are first accessioned into NARA. A researcher does

not need to use FOIA to have access to our open records. We make

available millions of pages through hundreds of thousands of researches every year in this manner. In fact, the last fiscal year

NARA answered 1,100,000 written requests, excluding FOIAs, for

access to accessioned documents.

The FOIA is used at the National Archives for the much more

limited basis of requesting that records of executive branch agencies in our holdings that have access restrictions. FOIA is also used

to request Vice Presidential and Presidential records from the administrations of Presidents Ronald Reagan, George H.W. Bush and

William Clinton under the provisions of the Presidential Records

Act. Clinton Presidential records will become subject to FOIA on

January 20, 2006.

But I should stress that records of the judicial branch, the legislative branch, as you know, donated historical materials and the

Nixon Presidential historical materials are not subject to FOIA.

When records are accessioned by NARA, these records become a

permanent part of the history of this Nation. They are no longer

working papers of the agencies that created or received them, but

are transformed into historically valuable documents necessary for

understanding the policies, programs and actions of the various departments and agencies of the executive branch.

Once these records are in our legal custody it becomes NARA’s

responsibility to make access determinations consistent with provisions of FOIA. This is very important because the passage of time

often diminishes the need to restrict many types of information. Information that may be sensitive at the earlier stages of the record’s

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life cycle has often lost its sensitivity once it is among our holdings.

And we make access decisions based upon this changed status.

While it is our responsibility to make access determinations on

the records that are subject to FOIA in our custody, there are two

areas over which we have no discretion to make access decisions.

The first exception, as you know, for national security information

that is classified pursuant to the current Executive order, FOIA

Exemption B–1. This information can only be declassified by the

agency that classified it. The lengthy referral process necessary to

review records for declassification is the primary reason for the

backlogs at many agencies, including NARA currently face.

Mr. Chairman, I just want to assure the members of this committee that I am dismayed by the backlog. Anything we can do to

address that situation we are going to do. But give us a little time.

The second exception is for information that cannot be released

under other statutes passed by the Congress, FOIA Exemption B–

3.

While the passage of time lessens the need to restrict most types

of information, we recognize that some information continues to be

sensitive for many years. I believe that NARA’s greatest strength

in implementing our FOIA policy is that the spirit of the FOIA is

consistent with NARA’s mission.

The FOIA is a disclosure statute and NARA is an agency dedicated to ensuring that the records of our national history are available to the public in the most complete format possible. Our mission of openness is complimented by the extremely knowledgeable

FOIA staff, Dr. Kurtz among them, which has for many years had

experience in processing FOIA requests.

Furthermore, we have developed electronic tracking and reduction systems to streamline our FOIA processing. While NARA faces

many challenges in implementing our FOIA program, one of the

most difficult is providing access to electronic records. We are accessing an increasing volume of records that are born digital. All

of these record systems pose and present access problems. These

records are often produced on different types of hardware, using a

wide range of software. Searching, reviewing, redacting and providing access to these records continues to be a very serious challenge

for us.

The second challenge we face is the timeliness issue. While we

have been successful in responding to a high percentage of our

FOIA requests within the 20-day time period, requests for records

of high researcher interest and/or of recent origins in many instances cannot be completed within the 20-day period.

Part of this problem can be explained by the lengthy process necessary for declassifying documents. It must be understood, however, that documents that concern very sensitive privacy matters,

Exemption B–6; law enforcement issues, Exemption B–7; business

information, Exemption B–4 or vulnerability assessments of systems and facilities, Exemption B–2, simply cannot be carefully

processed within the 20-day period. This is especially true if the request is for voluminous records or multiple files.

Mr. Chairman, this concludes my formal opening remarks. I just

wanted to make one additional point. No one in Government that

I know of treats the FOIA issue with more seriousness than my colVerDate 11-MAY-2000 11:03 Sep 08, 2005 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 D:\DOCS\22705.TXT HGOVREF1 PsN: HGOVREF1
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leagues and I do at NARA. So, this committee will have the benefit

of our cooperation and our support as it goes on with its work.

Thank you very much.

[The prepared statement of Mr. Weinstein follows:]

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Mr. PLATTS. Thank you for your testimony.

Mr. Nichols.

STATEMENT OF CARL NICHOLS

Mr. NICHOLS. Thank you, Mr. Chairman and members of the

committee. My name is Carl Nichols. I am the Deputy Assistant

Attorney General for the Civil Division, Federal Programs Branch

at the Department of Justice, which, among other things, oversees

Freedom of Information Act related litigation.

I am pleased to appear before the subcommittee to address the

subject of FOIA, the principal statute governing public access to

Federal Government records and information. This law, which has

been in effect for 38 years, has become an essential part of our

democratic system of government, a vital tool used by our citizens

to learn about their Government’s operations and activities.

It is an honor to testify on behalf of the Government employees

who respond to millions of FOIA requests processed by the executive branch every year.

The administration and the Attorney General are firmly committed to full compliance with FOIA as a means of maintaining an

open and accountable system of government, while also recognizing

the importance of safeguarding national security, enhancing law

enforcement effectiveness, respecting business confidentiality and

preserving personal privacy.

Indeed, as part of its responsibilities for the administration of FOIA, the executive branch spends in excess of $300 million per

year responding to FOIA requests, only a tiny fraction of which is

reimbursed to the Treasury by requesters.

The Government employees who process and respond to the 4

million FOIA requests every year are a group of dedicated public

servants who discharge their duties with vigor, diligence and professionalism.

The Department of Justice is the lead Federal agency for FOIA

and encourages uniform and proper compliance by all Federal

agencies through its Office of Information and Privacy.

As you may recall, FOIA was strengthened by the Electronic

Freedom of Information Act Amendments of 1996, referred to as EFOIA. The amendments brought FOIA into the modern electronic

age by addressing electronic record issues, timeliness of agency responses to FOIA requests and other procedural matters under the

act.

The provisions increased initial time for responding to FOIA requests from 10 to 20 working days; authorized agencies to process

FOIA requests in multiple tracks, encouraged agencies to negotiate

FOIA request sizes and response times with requesters; and established a mechanism for the expedited processing of FOIA requests

filed by members of the news media.

Additionally, pursuant to the E-FOIA amendments, all Federal

agencies have established specialized FOIA Web sites that have become a major part of Government-wide FOIA administration.

The biggest challenge facing the Federal Government under

FOIA is the issue of timely processing of requests. Agencies respond to FOIA requests as quickly as possible. When a complete response is not possible, letters of acknowledgment routinely are proVerDate 11-MAY-2000 11:03 Sep 08, 2005 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 D:\DOCS\22705.TXT HGOVREF1 PsN: HGOVREF1
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vided to inform requesters of the action being taken concerning

their requests.

Many factors affect the timing of responses such as the number

of incoming requests, the number of office components with responsive documents, the number of office components that must be consulted, the size and complexity of the requests, the resources available to the agency, and the availability of the records.

This administration welcomes and encourages communications

between FOIA personnel and requesters, especially where a complex request is involved or where there is an issue regarding the

availability of responsive records.

There are good reasons that not all Federal agencies are able to

regularly comply with the strict time limits of the act, particularly

those agencies required to meet large volume FOIA demands or demands for particularly sensitive needs.

Federal agencies, of course, have primary missions that place

high demands on limited resources. This is especially true in the

post-September 11th world. Such limited resources make it increasingly difficult to administer FOIA with the timeliness that all concerned would prefer. As a result, substantial burdens are placed

upon limited agency resources and the Government employees who

respond to FOIA requests. In sum, no discussion about FOIA can

be complete without a serious and sustained examination of the resource and personnel needs faced by the executive branch in administering FOIA.

As members of the subcommittee are well aware, nine categories

of records are considered exempt from mandatory disclosure under

the act. It must be emphasized for the record that these exemptions are central to the purposes of the act because while the basic

purpose of FOIA is to ensure an informed citizenry, FOIA balances

society’s strong interest in open government with other equally

compelling public interests such as protecting national security, enhancing the effectiveness of law enforcement, protecting sensitive

business information, protecting internal agency deliberations and

common law privileges and, not least, preserving personal privacy.

We believe that the current system of collecting fees for FOIA requests has benefited many requesters, as evidenced by the fact that

requesters currently pay a mere 2.09 percent of the total costs associated with FOIA compliance.

At the same time these fees impose a modest financial incentive

upon those requesters who make FOIA requests for commercial

purposes to submit reasonable described requests. The Department

of Justice believes that this is important because the statute itself

places few limitations on the scope of a request. Appropriate fees

are necessary to provide a reasonable disincentive for frivolous or

over-broad requests.

In conclusion, since its enactment in 1966, FOIA has firmly established an effective statutory means of public access, where warranted, to executive branch information. But the goal of achieving

and informed citizenry must be balanced against other vital societal aims such as national security, the public’s interest in effective

and efficient operations of government, the prudent use of limited

taxpayer dollars and the preservation of the confidentiality and seVerDate 11-MAY-2000 11:03 Sep 08, 2005 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 D:\DOCS\22705.TXT HGOVREF1 PsN: HGOVREF1
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curity of sensitive personnel, commercial, and governmental information.

I would be pleased to address any question you or any other

member of the subcommittee might have on the subject.

[The prepared statement of Mr. Nichols follows:]

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Mr. PLATTS. Thank you, Mr. Nichols.

Ms. Koontz.

STATEMENT OF LINDA KOONTZ

Ms. KOONTZ. Mr. Chairman and members of the committee, I appreciate the opportunity to participate in the subcommittee’s hearing on the implementation of the Freedom of Information Act.

As you know, under the act, agencies are required to report annually to the Attorney General providing specific information about

their FOIA operations. Over the past several years we have been

reviewing and summarizing these annual reports for the 24 agencies subject to the Chief Financial Officers Act and the CIA.

Based on this work a number of trends are apparent. First, citizens have been requesting and receiving an ever-increasing amount

of information from the Federal Government through FOIA. Based

on data reported by agencies, the number of requests received increased by 71 percent from 2002 to 2004.

In recent years the Veterans Administration and the Social Security Administration have accounted for many of the total requests.

In 2004 these two agencies accounted for about 82 percent of total

requests.

As more requests come in, agencies also report that they have

been processing more of them, 68 percent more in 2002 to 2004.

However, at the same time the number of pending requests carried

over from year to year, also known as the backlog, has also been

increasing, rising 14 percent since 2002.

In 2004 about 92 percent of FOIA requests Government-wide

were reported to have been granted in full. A relatively small number were partially granted and about 1 percent were denied.

Without VA and Social Security 61 percent of requests were

granted in full; 15 percent partially granted and 2 percent denied.

However, the number of fully granted requests varied widely

among the agencies in fiscal year 2004. For example, three agencies, State, CIA and the National Science Foundation make full

grants of requested records in less than 20 percent of the cases

they processed. We also saw this variation in previous years as

well.

In regard to timeliness, reported time required to process requests varied considerably by agency. For example, 11 agency components reported processing simple requests in median times of

less than 10 days. However, other agency components are taking

much more time to process simple requests and in some cases reported median processing time in excess of 100 days.

However, we were unable to determine trends in processing

times at the agency level because agencies have generally reported

median processing time at a component level, making it difficult to

drive an agency-level picture.

In addition, the use of a single median time to characterize how

long processing takes instead of a range of completion times and

the number of requests for each does not provide a complete picture of agency performance.

In summary, Mr. Chairman, FOIA continues to be a valuable tool

for citizens to obtain information about the operations and decisions of the Federal Government. Given the steadily increasing

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workload, it will remain critically important that strong oversight

of FOIA implementation continue.

We look forward to working with you and your staff to ensure

that agencies remain responsive to the needs of citizens. That concludes my statement. I would be happy to answer questions. Thank

you.

[The prepared statement of Ms. Koontz follows:]

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Mr. PLATTS. Thank you, Ms. Koontz.

Before we go to questions, I know, Mr. Weinstein, you need to

return to the Archives. Again, I appreciate your being here for your

opening statement and those of the other witnesses on the panel.

Mr. WEINSTEIN. Thank you, Mr. Chairman. Again, my apologies

to the members of the subcommittee. But the NHPRC is a very valued component of NARA and they are having their semi-annual

meeting today to decide on grants.

Mr. PLATTS. Well, we will save all the tough questions for Dr.

Kurtz in your absence.

Mr. WEINSTEIN. That is a good idea. He can answer them, Mr.

Chairman.

Mr. PLATTS. Thank you. We will proceed to questions and we will

begin with roughly our 5-minute round for each member. I will

begin.

Again, I appreciate all the testimonies and the effort that each

of you put in day in and day out trying to promote openness in our

Government. One of the issues I guess I would like to start with

is the timeliness and the challenge we have and some of the examples of the months, if not years, and some perhaps justified because

of the complexity and the volume of information until we go

through and really, from a national security perspective.

I would like to start with the first premise of what incentives

under current FOIA legislation, what incentives do agencies have

to comply with the time requirements in the law as it stands today.

I would open that up to all three of you.

Mr. NICHOLS. I’m happy to answer that question. First of all,

FOIA is obviously a Federal statute. My view is that agencies have

a duty to comply with Federal statutes. That in and of itself is an

incentive.

In addition, the Department of Justice, through its Office of Information and Privacy, provides guidance and encouragement to

agencies to both comply with FOIA in an appropriate way and also

to be timely in the way that they do so.

Finally, I think that it doesn’t happen often or not incredibly

often, but litigation, if requests are not processed timely, is a

threat. Agencies know that if they do not respond in a timely manner they may be sued and will have to defend their position in

court.

Mr. KURTZ. I think I would also add, Mr. Chairman, let me emphasize what the Archivist said, that it is our mission to make

records available and so the purposes of the Freedom of Information Act are very compatible with NARA’s mission. We have a very

trained and effective FOIA staff that works on these issues. So, it

is very compatible.

We have about a 75 percent response rate within 20 days, but

as we talk through the questions this afternoon, I think the serious

issues involved with the remainder will come to the fore.

Mr. PLATTS. Ms. Koontz.

Ms. KOONTZ. I would agree with what the other witnesses have

said. I would just add that FOIA does require agencies to report

publicly on processing times for providing FOIA requests. I think

this is an incentive as well to have their times look as favorable

as possible.

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In addition, just as Mr. Nichols said, they wish to avoid conflicts

with requesters and unnecessary appeals.

Mr. PLATTS. Dr. Kurtz.

Mr. KURTZ. I would like to add one other thing. In talking about

incentives, part of our implementation of the Government Performance and Results Act is we have set up standards and measurements for responsiveness to FOIA. That is part of our agency measurement system.

Mr. PLATTS. There seems to be lots of information about timeliness and how well an agency or department is doing. I would agree

in some instances the threat of a lawsuit, especially if it is a wellresourced applicant for the information, that is an additional legitimate threat.

But I guess my concern is what consequences are there for noncompliance? It is a question I have asked at a lot of hearings this

past 2 years as chairman of the subcommittee. In the private sector

there are more readily consequences for not doing one’s job. Usually you lose your job.

A week ago I sat here and asked what happened when one of our

departments spent $170 million on a program that now is found to

not be able to do what it is supposed to do and we are starting

over. My question was, was anyone let go? Has there been any effort to recoup that money? Unfortunately, the answer as best

known was no; thus far none of that has occurred.

I guess that goes to my question here. We look at the timeliness,

but are there any consequences? Are any of you aware of anyone

being demoted who is responsible for FOIA in any agency or any

department for non-timely compliance with FOIA requests?

Mr. NICHOLS. Not sitting here, I am not aware, but I would be

happy to look into that.

Mr. PLATTS. Actually, if you would identify and if there is any

information that relates to staff where in instances they have been

demoted because of failure to comply, we would like that information provided to the subcommittee.

Ms. Koontz or Dr. Kurtz, are you aware of any instances of there

being actually consequences for non-compliance other than through

the legal system?

Ms. KOONTZ. I am not aware of any situations like that, but I

have to say we haven’t been asked to study that particular issue

either.

Mr. KURTZ. I am not aware of any.

Mr. PLATTS. I certainly have more questions, but I am about to

run out of time. Maybe one last question on that same topic and

then I am going to yield to Mr. Waxman. We are going in the proper order now. Is relating to just that responsibility for oversight,

Mr. Nichols, is that most directly with you in your understanding

the law with Justice for overseeing within the executive branch,

timeliness and general compliance, fulfilling the requirements of

the law of all the various departments and agencies?

Mr. NICHOLS. Within the executive branch the Department of

Justice has primary responsibility for overseeing agency compliance

with FOIA. OMB does have a piece of that oversight, but Department of Justice does have the primary responsibility, yes.

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Mr. PLATTS. With that responsibility, are you aware of any instances where in identifying failures to comply that there were recommended actions submitted by DOJ to a specific agency or department recommending that the secretary or director of a certain

department or agency take remedial actions or administrative actions regarding the personnel involved for failure to comply?

Mr. NICHOLS. I am not aware of any such steps. I don’t know

that doesn’t mean it hasn’t happened. I am just not aware.

Mr. PLATTS. If you do become aware of information again, if you

could submit it to the committee after the fact, we will keep this

record open for several weeks after the hearing.

I am going to yield to the ranking member of the full committee,

Mr. Waxman of California.

Mr. WAXMAN. Thank you, Mr. Chairman.

Mr. Nichols, I would like to ask you about the proliferation of

new categories of restricted information and the use of information

designation such as for official use only to prevent public access to

non-classified documents. In your written testimony you noted that

labels such as for official use only should not be confused with

withholding information that is exempt from disclosure under the

Freedom of Information Act.

You have conceded however, that nevertheless they often are. I

am concerned that these labels are not clearly defined. They are

applied inconsistently across agencies and even within agencies

and they don’t have statutory authority in many cases.

Some administration officials have acknowledged this obvious

point. For example, I have a May 9th letter from the head of Intelligence and Security at the Department of Transportation on this

issue. This official, Christopher McMann, acknowledged that his

department ‘‘did not keep records of restricted information designations other than national security classifications.’’ He also stated

‘‘There is no regulatory or other national policy governing the use

of the for official use only designation.’’

Do you agree with his characterization that there is currently no

regulatory or national policy governing the for official use only designation?

Mr. NICHOLS. I am not sure about the answer to that. What I

do know is that answer does not determine whether, when a request is made under FOIA, that information will be withheld or not

because when you have a FOIA request you have to do the typical

exemption analysis, and that may or may not mean that the information will be withheld in a particular circumstance.

Mr. WAXMAN. That has more to do with the information itself

and not the designation for official use only, doesn’t it?

Mr. NICHOLS. I am not exactly sure I understand your question.

Mr. WAXMAN. Well, if somebody puts on there ‘‘for official use

only,’’ does that bestow FOIA exemption?

Mr. NICHOLS. May I confer with my colleagues for a second?

Mr. WAXMAN. Please.

Mr. NICHOLS. Absolutely not. That does not bestow a FOIA exemption.

Mr. WAXMAN. Do you also agree that in many instances there is

no statutory basis for using the ‘‘for official use only’’ designation?

Is there a statutory basis for using that designation?

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Mr. NICHOLS. With respect to FOIA or generally speaking?

Mr. WAXMAN. Certainly with respect to FOIA and then——

Mr. NICHOLS. Well, as I said before, that designation, to the extent it occurs, is not FOIA-determinative with respect to a request.

Mr. WAXMAN. OK. Now, my staff has been collecting examples of

bizarre uses of the ‘‘for official use only.’’ For example, according

to the publication Government Executive the Department of Defense phonebook is now labeled ‘‘for official use only.’’ In another

example, last December the Department of Health and Human

Services issued a new information security program policy. It was

labeled ‘‘for official use only.’’ Directly below this stamp, on the

cover page however, the report said the following disclosure is not

expected to cause serious harm to HHS.

Let me ask you, if HHS actually made a determination and stated on the cover of its document that disclosure would not cause

harm, why would they then restrict it by labeling it for official use

only?

Mr. NICHOLS. I am not sure why HHS made that determination.

But again, with respect to FOIA and whether this information, so

designated, would be producible to someone who made a FOIA request, I stand on my previous answer that ‘‘for official use only’’

will not be determinative of the outcome of such a FOIA request.

Mr. WAXMAN. Would you support efforts by Congress to help

agencies come to a more sensible and consistent application of

these labels?

Mr. NICHOLS. The labels for official use only?

Mr. WAXMAN. That or any other label that they want to make up

that there is no statutory basis for in law.

Mr. NICHOLS. I hate to sit here and speculate, Mr. Waxman. But

I think as a general proposition it is best to have a relatively consistent application of terms across the Government.

Mr. WAXMAN. Thank you very much. I yield back my time, Mr.

Chairman.

Mr. PLATTS. I now yield to Mr. Towns.

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

Ms. Koontz, how successful have agencies been in utilizing information technology for more efficient dissemination of Government

records and files to the general public? Are requests being completed more efficiently?

Ms. KOONTZ. That is an area that we haven’t studied specifically,

but we have had a lot of conversations with agency officials over

the years. I think one of the biggest challenges that they have consistently cited, along with the notion of having not enough staff to

do some of these responsibilities, it is also the lack of information

and technology support that they think could help them process

FOIA requests more efficiently.

We have also heard from other agencies who have implemented

electronic records management systems and they report to us that

these have helped them make gains in the area. This is not something we have been able to verify, but I think there is some indication that some places have had some success with this.

Mr. TOWNS. But most of the time it is a lack of staff, you say?

Ms. KOONTZ. That is often what they have told us, it is often a

lack of resources such as staff and such as information technology.

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I mean there are other factors, too, that play into their ability to

process in a timely manner which would include variations in

terms of the type of complexity of requests that they receive,

whether it is sensitive information that requires line by line review

and redaction. There are a number of variables here that affect efficiency.

Mr. KURTZ. One thing I would note, Mr. Towns, we have developed two automated systems for redaction and tracking that have

really greatly assisted us in performing our FOIA reviews at the

National Archives. So, we went from a purely manual system to an

automated system. It has been extremely helpful.

Mr. TOWNS. When did this take place?

Mr. KURTZ. I think we developed this about 2 years ago. We gave

a demonstration of it to the subcommittee staff in the last week or

so. We would be glad to make information about it available to any

interested agency.

Mr. TOWNS. Ms. Koontz, are the wholesale or incremental

changes that could be implemented to reduce the number of backlogs of FOIA cases throughout the agency community are they

wholesale or incremental? What would you say? How would you describe it?

Ms. KOONTZ. To reduce the backlog specifically?

Mr. TOWNS. The backlog.

Ms. KOONTZ. I think as with most things it is a combination of

probably some wholesale sort of changes as well as some incremental changes that need to be done to reduce to perhaps increase

staffing, if that is something if we can allocate more staff to FOIA.

But also to increase information technology, more of a wholesale

change, I would say.

Mr. TOWNS. Thank you.

Mr. Nichols, there are concerns that agencies are not being compliant with the provisions of FOIA relating to response time and

fulfilling requests from many news organizations. Can you offer us

some specific examples of what the Department of Justice has done

to enforce agency compliance with FOIA?

Has the DOJ FOIA office been active in forcing agencies to be in

compliance with their FOIA activities?

Mr. NICHOLS. I want to make clear that our oversight responsibility as we discussed earlier and I think is in my testimony is

that we are responsible for encouraging agencies to comply with

FOIA in a timely and consistent manner.

Mr. TOWNS. How do you do that?

Mr. NICHOLS. We post guidances. We have a full-time staff that

consults regularly with FOIA. Several members of that staff are

here today, the Office of Information and Privacy [OIP]. They have

a very robust Web page that gives agencies guidance on both substantive and procedural aspects of the act to encourage their compliance with the act.

Mr. TOWNS. But there’s nothing you can do, though, if they do

not comply?

Mr. NICHOLS. I’m not sure what you mean by nothing we can do.

Mr. TOWNS. What can you do then? Maybe that is a better way

to put it.

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Mr. NICHOLS. Well, I think, like I said, we encourage their compliance.

Mr. TOWNS. Encourage? What do you mean when you say encourage? Could you be a little more specific? Sometimes I encourage the chairman on some things.

Mr. NICHOLS. I think, a, we make sure they understand their obligations under the Act; b, we talk to them about their obligations

under the act; and c, we publish this guide that tells them what

they are supposed to do.

This is not a small book, obviously. This lays out their various

obligations. We try to make sure they understand as best they can

what they are supposed to do. I think those are important substantial efforts that we undertake and we devote a substantial number

of people, time and effort to attempting or pushing agencies to comply with their obligations.

Mr. TOWNS. Thank you, Mr. Chairman. My time has expired.

Mr. PLATTS. Thank you, Mr. Towns. Mrs. Maloney.

Mrs. MALONEY. Thank you.

Mr. Nichols, you testified earlier that if someone did not respond

or if the agency did not respond, then they could go into court. I

would like to ask my questions and my questions come from constituents, individuals, not big news organizations and so forth or

research organizations, but individuals who may have a conflict

with Government. There’s a fine that came in from Government.

They are questioning where it came from. The EPA is trying to

take their land from them. They have condemned or called it wetlands or different interactions with the Government.

One of them was a whistle blower that was fired and then tried

to look back at why this firing took place. In many of these cases

they tell me that the Government never responds. I’m not talking

about areas that are sensitive such as maybe Department of Justice or CIA or Homeland Security. I am talking about general agencies that are there to serve the public without any form—or should

not, in my opinion—have any form of confidential information or

whatever. It is not Homeland Security or has national interests involved. Yet they say they can’t get a response.

I think to give the answer that people can go into court is not

an appropriate answer. Most people can’t afford to go into court.

But they are certainly entitled to have the laws of this country

upheld.

I would appeal to my colleagues that I think this law has to be

changed. To say that you have to reply within 10 days—and I hear

from some constituents it is 1, 2, 3, 4 or never years. Then we have

to come up with a reasonable timeframe, maybe a year, maybe 6

months. But then fine the agency or do something to make the

agency respond. I think the answer, oh, go into court and sue the

Government, is just not an appropriate response for responsibility

of Government.

I would like to get back to the use of terms. As Mr. Waxman was

pointing out, when they say official use or they just redact reams

of paper, say a decision from the EPA or the Commerce Department where they will redact in a individual dispute with a constituent three-fourths of the paper. So all you are looking at is

black. I can’t imagine that the exemptions would apply to that.

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Now, if my constituent comes to me and says I don’t think this

should have been redacted, what course of action do they have or

can I take on their behalf? Do I appeal back to the agency and say,

please reconsider the redactions? Do I go to the Department of Justice? Is there someone looking to see if there is really a legitimate

reason for the redaction or maybe just a Government official

doesn’t want anybody to look at the mistakes they made or stupid

things that they did. I mean we all make mistakes.

But I think one of the strengths of our Government is that we

look at our mistakes, come up with better answers and go forward.

That is very troubling for me. It has come to me from about seven

different constituents that when they even got their FOIA request,

which is usually 1, 2, 3, 4 years later, that three-fourths of it is redacted. Who do you appeal to question why it was redacted?

Mr. NICHOLS. Well, if I can answer in two ways, first, with respect to any particular redaction it is almost impossible for me sitting here to know whether it was appropriate. In a whistle blower

example, there may have been law enforcement interests.

Mrs. MALONEY. Let’s stay away from the whistle blower. Let’s

stay with an individual dispute with an individual and the Department of Commerce or EPA.

Mr. NICHOLS. Sure, but it depends on what the dispute is about.

It may implicate law enforcement concerns. It could implicate Privacy Act concerns with respect to other individuals.

Mrs. MALONEY. But my question is, who do I appeal to for my

constituents. Who does my constituent appeal to when they believe

the redaction is unfair?

Mr. NICHOLS. There is a mechanism for appealing within FOIA.

Mrs. MALONEY. What is it? What is the mechanism? I want to

go back and tell my constituents how they can appeal the FOIA.

What do I tell them? What is the mechanism?

Mr. NICHOLS. I am sorry. I just wanted to confirm that my understanding is absolutely correct. Your constituent could take an

administrative appeal within the agency to challenge the determination either with respect to a denial of the request or withholding information or——

Mrs. MALONEY. They can do an administrative appeal to the

agency that redacted it?

Mr. NICHOLS. Yes.

Mrs. MALONEY. Saying, explain to me why was it redacted.

Mr. NICHOLS. Yes.

Mrs. MALONEY. And they can do an administrative appeal now

if, say, it has taken 2, 3 or 4 years? Please explain to me why it

has taken so long.

Mr. NICHOLS. I am sure there are time limits, though I don’t

know them right now.

Mrs. MALONEY. They are 10 days. The law says 10 days.

Mr. NICHOLS. No. What I mean is once they have received the

information and they think that it is improperly redacted, to challenge that redaction.

Mrs. MALONEY. OK. So they have to challenge it within 60 days,

I think it is. Then, once they challenge it, what is the timeframe

to get back to them?

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Mr. NICHOLS. They have to respond to appeals within 20 working

days.

Mrs. MALONEY. But you see, what has happened with this law—

and I know my time has expired—the law is not being enforced in

any way, shape or form. We heard from the numbers from the

chairman, I believe, that showed that the 10-day waiting period,

and even in your own testimony, is practically never met. The 20-

day response to the retractions is practically never met.

Right now we don’t have any enforcement tool back on the agencies. They can basically just ignore and go forward. As Mr. Nichols

said, the recourse that a constituent has is to go into court. I feel

that should be a last course of action. I don’t think the law is working right if the average citizen in our country can’t get their answer and the answer is they have to go to court to get their response.

Mr. NICHOLS. Could I respond to that?

Mrs. MALONEY. Yes, please do.

Mr. NICHOLS. I just simply don’t think it is true that the average

citizen can’t get a response. We have 4 million requests a year, 4

million requests. That is a substantial increase even over last year.

It is almost 30 percent, as the GAO testimony indicates.

At the same time, the backlog, which is requests pending for over

a year or across years, is only 160,000 requests, which is a 14 or

15 percent increase over last year. So, we have actually had a substantial increase in requests and not nearly the same increase in

backlog. The number of 140,000 or 160,000 requests that are backlogged as a percentage of the total number of requests is substantially less than 5 percent.

Mrs. MALONEY. As one of my constituents said to me, administrative appeal never works. You are going against the Government.

The Government always wins. So, I would like to know how often

are administrative appeals successful and how often do the

redactions change in favor of the citizen? Do you have any data on

that?

Mr. NICHOLS. No data. I think it varies by agency.

Mrs. MALONEY. And what if the citizen disagrees with the administrative appeal decision? What recourse is there?

Mr. NICHOLS. Well, they can, of course, always go to court.

Mrs. MALONEY. It is going to court. OK, maybe that is something

we could as a committee request, a GAO report on how often are

the administrative appeals successful and how often do the

redactions change in favor of the citizen. I think that is a legitimate question to ask and I think it is one that we should do in a

bipartisan way.

Also, the timeframe, maybe I am unusual, but I hear reports

from my constituents that they wait 1, 2, 3, 4 years to ever get a

response.

Mr. PLATTS. Mrs. Maloney, we are going to come back around for

another round and maybe several rounds as the time allows. But

I think it is a legitimate question. I would like, Mr. Nichols, if the

Department of Justice could submit to the committee any data that

you do have, maybe not with you today, but that the department

has that relates to either specifically to Department of Justice or

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other agencies on administrative appeals, how many were made in

the last, say, 2 years and how many were successful in any form?

If you have it for other departments or agencies, we would like

you to submit that as well, but if you have, even just for the Department of Justice, that would be very helpful and give us an example.

Mrs. MALONEY. I think maybe a GAO report would be in order.

Mr. PLATTS. Well, that is something we can look at.

Mrs. MALONEY. We could look at it. I will tell you, I think this

is one of the most important bills that ever passed Congress. It is

one of the things that makes our democracy great. I come from a

city that gets criticized all the way, all the time, by the whole Nation. I sometimes think it makes us stronger when we look at what

we have done wrong and we get stronger from it.

But I am getting a lot of complaints from my constituents and

maybe I am just overreacting, but when people yell at me, then I

get a little testy. They are saying no one listens to them and the

administrative appeals are cooked. So, I don’t know.

Mr. PLATTS. Mrs. Maloney, that is the reason we are here today,

is to explore the good and bad of FOIA and what the weaknesses

are, what the strengths are and that is the reason for this panel

and our second panel of requesters, is to explore what improvements over the last 39 years have been identified and even the last

9 years since the 1996 act, which I know you played a critical role

in and I commend you on that effort. But that is the purpose of

this hearing, is to explore that.

If you could provide that information and my guess is you will

have it perhaps just for your department, which we will welcome

and then we will look at the possibility with the ranking member

of a GAO request to go beyond that.

Mrs. MALONEY. Thank you. Thank you, Mr. Chairman.

Mr. PLATTS. I would like to continue on one of the challenges.

Mr. Nichols, I appreciate, one, you pointed out that we want to

keep it in perspective that we certainly have room for improvement. But when we look at numbers and we look at that 71 percent

increase from 2002 to 2004 of requests for information and then we

talk about 140,000, up to 160,000 now in 2004 of carryover,

unfulfilled.

Your point about percentages, if we extrapolated from where we

were in 2002, a 71 percent increase in requests to the 140,000 in

carried-over cases in 2002, we would have had about 100,000 more

cases carried over, not just 20,000. So in those numbers there is

actually some good news in the sense that a smaller percentage of

that huge increase is now carried over and that is good news.

Ideally, we get to where an even smaller percentage is carried

over. There are certainly going to be some of these very complex

cases of national security that we know will carry on longer than

we would otherwise hope.

But let me get to one of the things you talked about in your testimony, which is staffing. The demands that we are placing and

using Justice and FBI in the post-September 11th environment, we

know there is a tremendous redirection and a needed redirection

of resources. Does that account for it? My understanding is that

prior to 2001 FBI had 600 roughly personnel doing FOIA in the DeVerDate 11-MAY-2000 11:03 Sep 08, 2005 Jkt 000000 PO 00000 Frm 00120 Fmt 6633 Sfmt 6633 D:\DOCS\22705.TXT HGOVREF1 PsN: HGOVREF1
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partment of Justice and we are down then to 400. We actually reduced it by about a third.

Is that, first, accurate? Are you aware if those numbers are

roughly accurate in the numbers at Justice?

Mr. NICHOLS. If I could check and see if we know.

Mr. PLATTS. Sure.

Mr. NICHOLS. That is roughly correct.

Mr. PLATTS. As we are seeing an increase we actually see a reduction in staff internally and now I am going to assume that is

because of enhanced demands on the department. But in getting to

the issue of staffing, are you aware of any requests by Justice submitted to OMB when the annual budgets are put in place for returning to that 600 level?

In other words, in 2004 where we have just had the 2006 budget

submitted a few months back and the 2005 budget and the 2004

budget, have there been requests for additional FOIA staff to deal

with this huge volume?

Four million requests a year, 71 percent increase Governmentwide is huge and a lot of that being Justice—prisoners, I know in

particular, are you requesting more staff to try to keep up?

Mr. NICHOLS. Again, if I may consult.

Mr. PLATTS. Sure.

Mr. NICHOLS. Two answers. One, I am not aware, we don’t know.

I would have a hard time talking about internal deliberative processes anyway. But again, I am not aware.

Mr. PLATTS. But I would like if you could followup again for the

record. If the public information as far as what was submitted to

OMB, the budget request, and I was going to make a joke. I hope

I don’t have to make a FOIA request for that information.

Mr. NICHOLS. We would process it timely. We will make the 20-

day deadline.

Mr. PLATTS. I think that is a legitimate question. We have seen

your demand go up tremendously. It is a legitimate statement to

say from a staffing standpoint we are swamped and rightfully you

have huge priorities.

But I do agree that one of the foundations of our democracy is

openness. One of the ways we defeat the terrorists is by remaining

an open Government and not allow them to achieve what they are

after, which is to change our way of doing business, as a Government and as a Nation. So, you are checking. Maybe we can look

at the 2004, 2005 and 2006 budgets, what specific requests for additional FOIA staff have been submitted to OMB and perhaps ultimately by OMB to Congress. I am not aware of any, but I appreciate that.

On the issue of staffing, and this really goes to Dr. Kurtz, you

and Mr. Nichols, how do you ensure on the staff you have a consistent uniform application of discretion, when deciding what should

be released and is appropriate and what is not? What goes into

that training and that process?

Mr. KURTZ. We have a special designated staff that works with

FOIA both here and the National Archives in Washington and in

the Presidential libraries that fall under FOIA and the Presidential

Records Act.

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So, there is intensive training, both in the area of FOIA exemptions and also areas of declassification, other statutes that apply

such as atomic energy statutes. So there is continual and constant

training and the staff works on all of these sensitive areas including FOIA.

Mr. PLATTS. But that training is internal, correct?

Mr. KURTZ. Partially.

Mr. PLATTS. Is some of it with Justice?

Mr. KURTZ. Some of it is provided by the Justice Department. A

lot of it is provided by other agencies. For instance, the Department of Energy has a very extensive program for reviewers.

Mr. PLATTS. And that really goes to—I guess I am looking for

uniformity not just within your own agency, but across the Federal

Government. How do we ensure that there is equal or uniform discretion?

Mr. KURTZ. It would seem to me that agencies that have a lead,

for instance that is why I mentioned the Department of Energy for

atomic energy information, they are the experts and so they provide training Government-wide. Perhaps that is a model that could

be considered for other areas in competence.

Mr. PLATTS. Mr. Nichols.

Mr. NICHOLS. I agree with that. I also add what I have said

about our Office of Information and Privacy which provides substantial guidance, both substantive and procedural to all agencies.

It has a great Web site and publishes this book, which does a lot

of things to ensure consistent application of FOIA.

Mr. PLATTS. I am not aware currently of this being the case. Is

there any discussion at Justice or in the various agencies—you

identified some instances of spikes in FOIA requests and that

small agencies can get inundated, a large agency could get inundated because of an issue popping up—of having a Governmentwide FOIA team that is easily moved? Does that happen today?

Are there FOIA staff that, Justice gets hard hit and you borrow

from the Archives or is there any sharing of FOIA staff currently

and is there any discussion of more of a Government-wide team

being put in place?

Mr. NICHOLS. I think it happens on a fairly small scale, a caseby-case basis. There is not, as I understand it, a dedicated task

force that might move agency to agency or case to case. It is more

ad hoc.

Mr. PLATTS. Because they relate to me, they say if we want uniform application of FOIA so we try to have uniform training, that

there would be an opportunity for that so that as there are spikes

from agency to agency we would not have to add permanent staff,

but maybe shift people.

My only hesitancy, and I am interested in the opinions of all

three of you if this is something you think would be a concern, that

while you can get uniform training, having insights into specific

knowledge of your agency’s information is a critical aspect of the

decision that you make. Is that perhaps a big hurdle from that

kind of team that would move from agency to agency?

Ms. KOONTZ. I think that is a fair characterization that in some

cases that certain agencies may require staff who have expert

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formation in order to make the right kind of decisions about disclosure. But that would not be uniform across the Government. It

would be in particular cases, so I think it is an idea that might otherwise have some merit for particular situations.

Mr. PLATTS. More likely where there is intelligence sensitivities?

Ms. KOONTZ. Yes.

Mr. PLATTS. Some of the agencies on a more regular basis are

going to have those type of sensitive decisions?

Ms. KOONTZ. And often an agency like CIA might cite that one

of the difficulties they have is being able to hire trained staff who

can go through this very sensitive information and review and redact it. It is not something that anybody can do and that is why

they often call on retired personnel and get them back to do that

sort of thing.

But we are not dealing with a monolith here. There are many

different kinds of requests and we have to take them into consideration.

Mr. KURTZ. Just to followup on Ms. Koontz’ comment, the State

Department, for instance, has a very active program of bringing

back retired Foreign Service officers to work in declassification and

access issues because of their expertise and their knowledge.

Mr. PLATTS. OK. I am going to yield to Mr. Towns.

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

Ms. Koontz, I know you have had a lot of work in this area and

you have been able to talk to a lot of people. I ask this question

because something strikes me real funny here. I think that as

Members of the Congress, I think this is going to be something that

we will probably want to ask more questions about.

The fact that nobody has ever been fired for not—that, to me,

strikes me as very funny. What is the general consensus in terms

of talking to staff out there? Do they feel that complying is important or do they just feel that if I comply, fine; if I don’t, so what?

Ms. KOONTZ. We certainly have not talked to everybody, but I

have to say that the FOIA staff that we have talked to over the

years are very dedicated. They are very, very interested in trying

to meet the needs of requesters. I haven’t seen any kind of attitude

that would indicate to me that people don’t care about what they

are trying to do here.

But sometimes they do suffer from maybe a lack of attention

within the agency, a lack of resources. In some cases, too, again,

some of these requests are very difficult. They are very broad and

often searching agency records, searching records across an agency

is a very difficult task.

Mr. TOWNS. Let me ask this question then. While a person is

waiting for information, do they generally acknowledge the fact

that a request has been made?

Ms. KOONTZ. I believe there is an acknowledgment and also we

have been talking a lot about that 20-day requirement. The 20-day

requirement is actually not a requirement to supply the records, as

I understand it. It is really a requirement to get back to the requester and say are we going to comply with your request or not.

So, that is a form also of getting back to the requester and letting them know that yes, you are going to provide responsive

records or no, you don’t have responsive records.

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Mr. TOWNS. What would your reaction be if we decided to say

that a response must be answered within a year, one way or the

other? What would your reaction to that be?

Ms. KOONTZ. My reaction to it would be that I think it is useful

to have guidelines or requirements for when agencies are supposed

to provide things. However, I am a little concerned that if you

make it a year, while I am not sure that is any more realistic than

making it 20 days. It doesn’t recognize the variations.

I think that whatever timeframe we come up with has to recognize the reality that there are huge variations in the type, number

and FOIA request that agencies get.

Mr. TOWNS. Mr. Nichols.

Mr. NICHOLS. First, the administration, I don’t know what its official policy would be with respect to that if it were proposed in the

bill. But I think part of the consideration would have to be, well

what is the penalty for failure to comply? I don’t know what you

are suggesting would be the consequence of that. That would obviously be relevant to the consideration of whether and to what extent that would be a good idea.

Mr. TOWNS. Excellent question. Maybe we would have to reduce

your budget.

Mr. KURTZ. You could send it to the Archives.

Mr. TOWNS. Mr. Kurtz.

Mr. KURTZ. We have been discussing this very issue amongst

ourselves at NARA about what might be various strategies to pursue. Picking up also on what Ms. Koontz said, our difficulty really

is coping with very complex cases. We get almost all of the socalled simple ones out within the 20 days.

So we do a couple of things. One, we do communicate with each

researcher if it is going to take more than 20 days. But more than

that, we try to engage them in a communication and dialog with

us so we can try to focus the request, get some idea of their priorities so that we can move through it in a certain way.

I know there are several bills that have been proposed and one

that proposes to establish a commission to look at the issues of why

FOIA is so difficult to implement. One of the areas that a commission could look at is various categories of problems and are there

different timeframes and so forth for different kinds of requests involving different kinds of records.

There are law enforcement issues. There are national security

issues. Each of those have their own complexities. Perhaps a commission could consider, instead of one sweeping sort of deadline, try

to have some sense of categorization and stratification.

Mr. TOWNS. The reason I raised this issue is because as Members

of Congress, and I think Congresswoman Maloney addressed it,

how we bump into constituents who say, well, I have made a request and I haven’t heard a word. So, I am wondering in terms of

if there was a sort of time limit on it that it would sort of be helpful.

But anyway the 20 days, I think that helps some if it is actually

being complied with. Ms. Koontz, did you see that it was actually

being complied with?

Ms. KOONTZ. That is an interesting question because although

there is a 20-day requirement, we looked at the annual reports that

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agencies give to the Attorney General. That particular metric is not

reported on. So, it is not possible for us to say from the data that

are in the annual reports to what extent they are being complied

with.

Mr. TOWNS. My time has expired, but I actually have one more

question.

Mr. PLATTS. Sure, Mr. Towns.

Mr. TOWNS. OK, fine. This is to you, Dr. Kurtz. According to a

recent notice from the National Archives and Records Administration in the Federal Register, your agency would be discarding approximately 9.100 backup tapes of classified records from the Clinton administration.

Some historians have expressed concern about this, saying some

data or information may be lost in the process. Can you assure us

that your efforts will not result in the loss of any information or

data?

Mr. KURTZ. Yes, I can. Those backup tapes are duplicates and all

of the information from the various systems have been backed up.

They have been preserved. There will be no loss of information.

That is what we intended to try to convey in our Federal Register

notice. As we get responses from the public and concerns from historians, we will be talking with them and explaining actually what

we have done from a preservation point of view and to try to clarify

any confusion.

Mr. TOWNS. Thank you very much.

Mr. PLATTS. Thank you, Mr. Towns. I understand that you are

saying they are duplicate backups.

Mr. KURTZ. Right.

Mr. PLATTS. We want to followup, Ms. Koontz. You said in the

annual report you review that metric is not there. That is a decision of Justice and what you require in the reports? You set the

parameters or where are those parameters? Is that in the statute,

what they have to give you?

Mr. NICHOLS. Yes. What we ask for is what Congress has provided for by statute and that is generally what the agencies give

us.

Mr. PLATTS. But you could request additional information as the

one responsible for oversight. There is nothing prohibiting you from

saying we want this specific metric in your annual report so that

we get to that issue of 20-day compliance.

Mr. NICHOLS. I think that is probably right. The reason I say

technically yes, it is always possible, but you would have issues of

comparing the specific framework that Congress set up and the extent to which imposing additional requirements would be consistent with that framework would have to be considered closely.

That is why I say technically yes, I guess anything is possible.

But you would have to look at it closely.

Mr. PLATTS. I would encourage the Department to consider and

if legislation is to move forward here in the House and Senate, that

is something we would look at. On an administrative standpoint,

given that your responsibility is oversight as an agency, one of the

things you are looking at is timeliness in that 20-day requirement

metric is certainly one that goes to the crux of timeliness, to identify, where there may be a red flag going up that you more quickly

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hone in on a possibly problem. So, I would encourage the department to give weight to that or thought to that.

I want to turn to the issue of expedited review. Ms. Koontz, what

trends have you seen regarding the use of the expedited review

process in recent years?

Ms. KOONTZ. What we have seen since between 2002 and 2004

is that the number of expedited requests have dropped fairly dramatically by about 75 percent. But this is mostly due to a similar,

very big drop at Veterans Administration in expedited requests.

I can’t explain further than that because all I have is the data.

I even talked to VA about what the reasons for that change were.

Mr. PLATTS. That is what I was going to ask you as far as the

reasoning behind that we are not aware of.

Ms. KOONTZ. I am not aware of it, no.

Mr. PLATTS. OK. Thank you. One quick question yet and then I

want to get to Mr. Duncan. I apologize. I didn’t see you come in

there on my left.

Mr. DUNCAN. That is all right.

Mr. PLATTS. On the expedited review, Mr. Nichols, have you

looked at compliance at all on that specific issue, where agencies

and departments, how they are responding to expedited review requests in particular?

Mr. NICHOLS. I know that there are data on expedited review

processing. Beyond that, if I may check again, like the other data

that we have about the timeliness of responding to simple and complex requests, we now as of 2 years ago include expedited data with

that other data. So, one can look at the extent to which those requests are being complied with in the timeliness sense in the same

way as you can look at the other information.

Mr. PLATTS. Is there any specific agency or department that

raises concerns about their compliance rate regarding expedited requests?

Mr. NICHOLS. None has been brought to my attention for sure

and none that I am aware of with respect to expedited.

Mr. PLATTS. Thank you.

I now yield to Mr. Duncan from Tennessee for the purpose of

questions.

Mr. DUNCAN. Well, thank you, Mr. Chairman, and thank you for

calling a hearing on a very important subject. I am sorry that I had

meetings that prevented me from being here earlier. I have two

groups of constituents waiting for me in my office right now.

But let me just make a couple of comments. I remember several

years ago Governor Rendell of Pennsylvania who, before he was

Governor, was Democratic National Chairman, he said at a hearing

several years ago, he said the problem with the Federal Government is that there is no incentive for people to work hard, so many

do not. There is no incentive for people to save money, so much of

it is squandered.

That is so true. I thought of that when I heard Mr. Towns express some amazement that nobody has been fired who had not

been doing a job on these things. One of the other problems with

the Federal Government is that too many employees know that

they would have to commit some horrendous criminal offense to

lose their jobs.

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But I noticed in these statistics that 46 percent of these requests

are to the VA and I also notice that the VA has the quickest average on handling these requests.

Then 36 percent of the requests are to the Social Security Administration. What it looks like is that the departments that are

the slowest in handling these things are also the departments that

are getting the fewest requests.

Now, it is the easiest thing in the world to make a simple thing

complicated and that is what we do too often in the Government.

I think that based on what Mr. Rendell said, that somebody should

consider offering some of these departments that are doing such

slow jobs, offering some incentive to employees who get these requests processed quicker.

They should also, in conjunction with that, penalize employees in

their salaries. You said something about cutting the budget. Gee,

we haven’t cut a budget since I have been here and I have been

here 17 years. So, we are not going to do that. But we should consider some types of incentives or something if you really want to

do something about this problem.

That is about all I have to say. I will have to leave, but thank

you, Mr. Chairman, for holding this hearing and for calling on me.

Mr. PLATTS. You are welcome, Mr. Duncan. We appreciate your

being here. As we have discussed in previous hearings, the consequence issue is something that we are going to stay after, whether it be here with staffing.

Mr. DUNCAN. Well, I appreciate the work you are doing. You are

turning this into one of the more active subcommittees in the Congress. We don’t always have many people here, I recognize that.

But I do always try and show up, for a while anyway.

Mr. PLATTS. We know the challenge of being in four places at

once is something that is always with us. Thank you.

We are going to run short on time. We may have some written

questions that we will submit to you and keep the record open for

those 2 weeks, depending on what we have covered here today. I

want to get just a couple more on the cost issue. Mr. Nichols, you shared that roughly $300 million cost Government-wide on a annual basis, which is significant. One of the costs

that I wanted to ask about that I wasn’t sure, with the Department

of Justice is your litigation costs in the civil side related to FOIA.

My understanding is from 2003 to 2004 it went from 30,000—I

guess several years in a row it was at 30,000 and then jumped to

6.7 million in 2004. Is that just a real way of accounting for your

litigation costs or was there actually a new expenditure of more

than $6 million?

Mr. NICHOLS. No. I think my understanding is that we started

capturing the costs correctly or differently and so it is not as if the

litigation expenses increased 50-fold.

Mr. PLATTS. So, it might have been kind of apportioned to something else as opposed specifically to FOIA-related litigation?

Mr. NICHOLS. That is right.

Mr. PLATTS. OK. On the issue of costs, Mr. Nichols, you and Dr.

Kurtz, with your agencies, if you could wave a magic wand what

would be your first request or wish to help reduce the costs you

have related to FOIA and your ability to manage the cost?

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Mr. KURTZ. Well, I would put it this way: This might not sound

initially like reducing costs, but we need more staff to train and to

work and focus on the FOIA requests. I think over time if we were

able to do that we could tackle the more complex issues that we

have with other agencies related to processing these requests and

it would end up, I think, ultimately driving down the costs of delay

and it would also provide a much enhanced public service.

Mr. PLATTS. Are you referencing specifically where you have

something that you have to go to another agency for their approval

because if it is a classified document only they can declassify it?

Mr. KURTZ. Right. It takes a lot of time when you have very

large requests for thousands and thousands of pages of records to

review them, make the referrals to other agencies and that sort of

issue. So, the more qualified, trained staff that are working on that

the faster at least that part of the process can go.

Mr. PLATTS. Mr. Nichols.

Mr. NICHOLS. It seems to me that a lot of the costs are driven

and in some respects are out of our hands. It depends on what requests we get. If we get requests for extremely sensitive information, classified information, law enforcement related information,

privacy protected information, that makes our responses take

longer, require more manpower to be devoted to them.

So, some of it is out of our hands. I would echo what Dr. Kurtz

said generally. I think at the margins one can always attempt to

cut costs. Certainly if we got fewer requests costs would go down.

Mr. PLATTS. It is not likely.

Mr. NICHOLS. Correct. We are always considering ways to make

ourselves more efficient. But from what I know I think a lot of it

is driven, as Dr. Kurtz said, by the nature, extent and type of request that we get.

Mr. PLATTS. My hope and belief is that information technology

can go a long way to ultimately drive down costs. Dr. Kurtz, I

thought that is maybe what you were going to say, more money

and information technology. I know your agency has made some

great inroads as you referenced, that information technology will

allow us, as we digitize information, we up front do a better job of

classifying it, this is releasable right away instead of an additional

review.

My one caution as I say that is that we don’t get to where we

see technology as this grand solution and start throwing money at

it because as I referenced earlier a week ago we had a hearing that

related to $170 million that was thrown at technology all for

naught because we are starting over.

Mr. KURTZ. I would say on information technology it certainly

has revolutionized the way we work internally. But the issues of

trying to work across agency lines on these issues and trying to use

information technology in sharing information back and forth, particularly if you are talking about classified information, is very

complicated.

We are finding that out as we are developing our electronic

records archives which will have a classified component to it.

Mr. PLATTS. And security concerns related there to?

Mr. KURTZ. Yes.

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Mr. PLATTS. For time, we are going to need to wrap up this

panel. I want to thank each of you and your staffs who are here

today, not just for your testimony, but for your service to your fellow citizens day in and day out. We appreciate your work and we

look forward to continuing to work with you and your agencies and

staffs as we go forward in promoting as open a Federal Government as possible.

We are going to take a 2-minute recess while we get the second

panel and we will reconvene shortly.

[Recess.]

Mr. PLATTS. The subcommittee will come to order.

Mr. Towns may get back with us. Mrs. Maloney, I understand,

as is typical on session days, has lots of conflicting schedules.

We are delighted to have our second panel with us. Again, we appreciate your written testimonies you have submitted and the oral

testimonies. What I would like to do, if I could ask you to stand

and be sworn in, as is the practice of the subcommittee to have everyone sworn in, and take the oath and then we will move right

to your testimony.

I think we have you in the order we are going to go in.

[Witnesses sworn.]

Mr. PLATTS. Thank you. You may be seated. The clerk will note

that the witnesses affirmed the oath.

Again, if you could stick roughly to the 5-minute timeframe, we

are not going to be sticklers. Our hope is we will have a good

amount of time and get through your statements and some good Q

and A before any votes happen. The last thing I want to have you

do is sit even longer while we go over for votes. Our belief is that

we will be able to complete the hearing before that happens.

Mr. Smith, we are going to start with you. I need to start with,

as a fellow newspaper person myself, of course I wasn’t writing or

editing, I was delivering. It was not my first job, but one of my

early jobs was as a Sunday news carrier in York. I never have been

a real early morning person. I think I lasted about 41⁄2 years doing

that paper route.

We appreciate your being with us. As one who delivered papers

for some of your colleagues in the industry, we are delighted to

have you here to start off this panel.

STATEMENTS OF JAY SMITH, CHAIRMAN, NEWSPAPER ASSOCIATION OF AMERICA AND PRESIDENT, COX NEWSPAPERS,

INC.; ARI SCHWARTZ, ASSOCIATE DIRECTOR, CENTER FOR

DEMOCRACY AND TECHNOLOGY; AND MARK TAPSCOTT, DIRECTOR, CENTER FOR MEDIA AND PUBLIC POLICY, THE

HERITAGE FOUNDATION

STATEMENT OF JAY SMITH

Mr. SMITH. Thank you, sir. I would not be here if not for people

like you.

Chairman Platts, I am honored to appear before you today. I testify as a citizen and as someone who has worked in the newspaper

business since he was 17 years old, and that is a long time ago.

I also testify as president of Cox Newspapers, which is the publisher of 17 daily and 25 non-daily newspapers. They are part of

126

Cox Enterprises, a company with cable, radio and television properties and more than 77,000 employees. As its chairman, I am also

testifying on behalf of the Newspaper Association of America, a

trade association representing more than 2,000 newspapers. NAA

is also part of the Sunshine in Government Initiative, which is a

coalition of media groups committed to open, accessible and accountable Government.

Please note that I listed citizen first. Citizens, not journalists,

submit most of the requests for information. Businesses also make

extensive use of the Freedom of Information Act.

FOIA has provided a model for the rest of the world. Many countries have followed our lead as they embrace democracy and open

their societies.

Created in 1966, the act has fostered public knowledge, participation and a way of life that we hold dear and that is a life of

openness and honesty. Permit me please a couple of real life examples on the significance of the act. The Associated Press found researchers at the National Institutes of Health were collecting royalties on drugs and devices tested on patients who did not know

about the agency’s financial interest in the products. That breached

an NIH promise to Congress. The practice ended under a reaffirmed policy announced when the story hit the wire.

The Dayton Daily News, a Cox newspaper, reported on the surprisingly large percentage of deaths of Peace Corps volunteers overseas. Thanks to FOIA, several families learned crucial details

about the deaths of their loved ones. That conflicted with what

they had been told by Peace Corps officials. The stories led to congressional hearings and prompted the Peace Corps to improve policies on safety and security for volunteers.

At its best FOIA builds credibility. Honest people get honest answers from honest public servants. It is that pure, that simple. But

the system has flaws. Agencies do not have strong incentives to act

on requests in timely fashion or to avoid costly litigation. Lack of

accountability leads to lost requests or an inability to track

progress and unwarranted denials of requests prevent important

information from reaching the public.

Consider this request now in litigation by our Cox Newspapers

Washington bureau. Federal law requires illegal aliens convicted in

our country of such crimes as rape, murder and child molestation

to be deported once they have served their prison terms. Thousands

of these aliens remain in the United States because Federal immigration officials failed to show up when the criminals were released

from prison.

Despite numerous requests, the Justice Department will not release information that could help journalists and the public to

know if aliens who should have been deported were instead released back into their communities.

The subcommittee has asked for recommendations on how Congress can improve FOIA. I would like to focus on three.

First, create a FOIA ombudsman to review compliance and to

identify public agencies plagued by excessive delays. The ombudsman would also assist in resolving disputes as an alternative to

litigation.

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Second, clarify that reasonable attorney fees can be recovered by

the requester when the pursuit of a claim was the catalyst for

agencies to release information. Too often the Government refuses

to provide documents, knowing full well that the law is not on its

side. Then, just prior to a court decision, the agency produces the

documents, effectively mooting the case. There is no recourse for

the requester, no disincentive for the Government to avoid litigation.

Third, ensure compliance of Federal agencies with the Electronic

Freedom of Information Act of 1996 to increase Government information provided on line, ever improving technology maybe more to

cut the knot that entangles public information than any other tool

at our disposal.

The benefits of these proposed remedies are not limited to the

media and to Government. They are about a common audience the

media and Government serve and serve well when they perform at

their best. And that, of course, is the American people.

Thank you for this opportunity. I look forward to your questions.

[The prepared statement of Mr. Smith follows:]

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Mr. PLATTS. Thank you, Mr. Smith.

Mr. Schwartz.

STATEMENT OF ARI SCHWARTZ

Mr. SCHWARTZ. Chairman Platts, thank you for holding this important hearing on the oversight of the Freedom of Information Act

and for giving the Center for Democracy and Technology the

chance to testify today.

CDT hopes that this hearing marks the beginning of the subcommittee’s interest in the important issues of public access to

Government information and the related issue of Government information management.

As others here have eloquently said, the Freedom of Information

Act remains the most important tool for public insights into the

workings of Government, necessary to ensure accountability.

While FOIA is the best tool and a model for openness around the

world, Congress has wisely decided to continuously monitor the

law’s effectiveness and improve it over time to make sure that it

is still working as intended.

When it has been clear that the law is not working well, Congress has amended FOIA directly or passed laws that work in concert with FOIA to improve Government accountability and access

to Government information. Efforts to include provisions that increase oversight and ensure that requests are answered in a timely

fashion are important. Yet, it is our contention that the most important changes to FOIA are those that obviate the need for FOIA

requests at all.

Over the past decade Congress has made changes along these

lines. In 1996 the E-FOIA passed. Among other improvements it

required the availability of frequently requested information and a

list of information systems directly online.

In 2002 Congress passed the E-Government Act that requires the

creation of a Government-wide taxonomy for the first time. If widely implemented, this will make searching for information much

more effective for both the agencies and Internet users.

Despite these improvements there have still been several setbacks in the efforts to improve access to Government information.

Too often issues of cost, privacy and security are unnecessarily

seen as competing with openness. Most of the discussion around

these issues assumes that there must be a tradeoff.

However, according to polling the public does not see it this way,

nor does CDT. In fact, CDT regularly hears stories from agencies

about the internal mismanagement of information that implicates

all of these areas. While cases such as the FBI virtual case files

have been highlighted in the press, similar inefficiencies and failures exist throughout Government.

For example, one agency came to CDT to discuss changes in its

Privacy Act practices. These officials were cataloging the Privacy

Act systems of records at the agency to examine those that could

be combined or eliminated.

They found about half of these important data systems were just

missing. In this case, as in so many others, poor information management doesn’t serve any interests. However, while bad informaVerDate 11-MAY-2000 11:03 Sep 08, 2005 Jkt 000000 PO 00000 Frm 00140 Fmt 6633 Sfmt 6633 D:\DOCS\22705.TXT HGOVREF1 PsN: HGOVREF1
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tion practices harm all of these areas, good information management practices can protect them.

Information managers have long suggested solving data access

and control programs by tagging information within the actual coding of the document. These tags describe the document in part or

in whole and would streamline searching the catalog for information. It would also allow the creators of public documents to tag

privacy-sensitive information or classified information, making decisions about releasing the document at the time it is created other

than other agency staff to review the document when it is requested.

Documents suitable for release could then be posted as a matter

of course without the need for a FOIA request. Such approaches

also offer opportunities for cost savings. It takes less time to

digitize and make available all agency documents with appropriate

redactions and withholdings than it does to file away the documents until FOIA request is received, search for requested documents and then print and review and send the documents it found.

Perhaps the best example of the power of posting information

comes not under FOIA but from a congressional agency, the Government Accountability Office. GAO began publicly posting all its

reports on its own Web site in 1996. By 1998, the total number of

copies that GAO was printing had decreased by one-third.

Meanwhile the average report was accessed more than 100,000

times online. Given the number of reports that GAO issues, this

means that in only 2 years tens of millions of more GAO reports

were being accessed without a significant rise in GAO’s budget.

We believe that while the subcommittee looks to improve FOIA

implementation that it encourage models that stress good information management. CDT is committed to working with the committee as your efforts continue and we look forward to your questions.

[The prepared statement of Mr. Schwartz follows:]

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Mr. PLATTS. Thank you, Mr. Schwartz.

Mr. Tapscott.

STATEMENT OF MARK TAPSCOTT

Mr. TAPSCOTT. Mr. Chairman, I commend you as well for holding

this hearing. I don’t believe the Freedom of Information Act gets

nearly the public attention that it deserves. I think that what you

are doing here is one of the most important things that this Congress will be doing this year.

Mr. PLATTS. Thank you.

Mr. TAPSCOTT. As I am sure you know, Secretary of Defense Donald Rumsfeld is one of the original co-sponsors of the 1966 FOIA.

He made an observation during the floor debate at that time that

I think has a direct relevance to what you are discussing here

today and the issues presented by how do we make the FOIA work

better.

Secretary Rumsfeld said ‘‘There remains some opposition on the

part of a few Government administrators who resist any change in

the routine of Government. They are familiar with the inadequacies of the present law and over the years have learned how to take

advantage of its vague phrases. Some possibly believe they hold a

vested interest in the machinery of their agencies and bureaus and

there is resentment of any attempt to oversee their activities either

by the public, the Congress or appointed department heads.’’

I think what he described as having happened in the years leading up to passage in 1966 of the original FOIA is very much what

has happened in the years since it was passed. What we have seen

is, over time, Government employees, the vast majority of whom

who handle FOIA requests being career employees, for whatever

reason have learned the many ins and outs and vague phrases

within the law and the case law on the administrative side to interpret the FOIA frankly for the Government’s advantage too often

and too often to the disadvantage of the requesters, particularly in

my case the news media.

I say this and I want to point out that when I cite career Federal

employees, I am a former Government employee myself, in fact I

was the fourth generation of my family to be in the Government

and I understand that career employees should have a certain degree of insulation from political employees and their pressures.

That is a good thing to a certain extent.

One of the byproducts of that insulation is that it encourages this

very process that I am talking about of being insulated from accountability for doing things like not properly administering the

FOIA.

I was frankly amused to hear Mr. Nichols from the Justice Department during the previous panel citing as one of the so-called

incentives to Government employees to do the FOIA administration

properly being the threat of a lawsuit.

Speaking as a journalist who has often had opportunities to consider is this important enough for us to file a lawsuit, 99.99 percent

of the time the answer is it probably is, but we can’t afford it.

I think that this process should surprise no one because we see

the results in the increased delays, the increased backlog and so

forth. The National Security Archive did a survey in 2003 that I

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think indicates very accurately the problem and the present condition. Their conclusion was simply that the system is in extreme disarray. I believe that is a very accurate characterization.

I was especially pleased, Mr. Chairman, when you focused in on

the absence of real penalties for not properly administering. The

fact is there are no penalties. There is, to my knowledge, no Federal employee who has ever been disciplined and certainly none

that has ever been dismissed for failing to properly administer the

FOIA.

There are consequences, but usually it is because they presented

too much information, not enough.

I am also encouraged that you have cited that as one of the main

problems that needs to be addressed because I think that is one of

the big things that the Cornyn-Leahy bill addresses, one of the

most important things that it addresses and that is providing genuine consequences, both to the individual employee and to the agency.

I want to cite for you an example that I recently learned about

that I think illustrates these problems. Mr. Frank Flimko is the

editor of a small newsletter that covers the Government’s funding

stream for youth programs. Last year he asked for HHS information on Federal salaries of Head Start directors. He was denied

that because allegedly providing that information would be a violation of personal violation.

Frankly, whoever wrote that denial didn’t know the law because

that kind of information has been routinely provided. But Mr.

Flimko doesn’t have a lawyer. He doesn’t have the kind of resources that are needed to challenge that kind of a holding. That

is the reality of what most newsmen and most requesters face.

Whatever the Government tells them is the last word. That needs

to be changed.

Thank you, sir.

[The prepared statement of Mr. Tapscott follows:]

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Mr. PLATTS. Thank you, Mr. Tapscott. I share the sentiment,

that the threat of litigation being the most overriding incentive to

comply is not a very valid one because, as you reference, even

newspapers are always hesitant because of the cost involved, to go

that route.

I think for that individual citizen it is not an option and we need

to find a way to better fulfill the intent of Congress, which is to

have an open, accessible Government. When that is not working,

there should be consequences.

That is one of the frustrations in 2-plus years in this chairmanship is that consequences is not something that is very common in

the Federal Government, for mis-expenditure of funds, for non-compliance with FOIA, whatever it may be. I want to touch on a number of issues.

My understanding is that our next series of votes is going to

begin between 4:15 and 4:30, which, assuming that is the earliest,

that means we have to be on the floor about 4:35 to get in under

the bell for that first vote. From what they are telling us, it may

be as many as six votes with a 10-minute debate on recommittal

in the middle, which means we do not want to keep you waiting

because you will be here a long, long time, probably at least an

hour and 15 minutes more.

So we are going to try to push through in the next 25 to 30 minutes and try to touch on various issues with Mrs. Maloney and myself.

First, Mr. Smith, your emphasis, and I did take note of your

identifying yourself first as a citizen, which I think is important for

all of us to do. Some of us are in office, some are in the private

sector. Whatever our positions are, first we are American citizens

all seeking that same good outcomes for our Nation and for all of

our citizens. I think that is an important perspective for us all to

remind ourselves about as we go forward on important issues like

this.

I wanted to ask, on a specific issue and I did not get to it with

Justice while they were still here. The example of the case with the

immigration issue and the aliens being released, that is an ongoing

litigation case?

Mr. SMITH. That is correct.

Mr. PLATTS. Because that is one that we may actually incorporate into our followup questions to Justice, that specific issue.

My guess is because it is an active litigation case they are going

to respond that since it is in litigation they can’t respond. But it

is one that just goes to the crux of homeland security.

Here we have individuals of not the character we want out on

the street and we have them in our possession and we are releasing them and apparently putting our citizens at risk and yet we

can’t get the data to verify the accuracy of that. We probably will

make a followup on that and see what response we get even though

litigation is involved.

I do want to get into a couple of your specific recommendations

and the idea of an ombudsman. I think Mrs. Maloney referenced

earlier in her statements and others have too of trying to have that

type of one-stop shop where you can go to as opposed to a litigation. So maybe you do the administrative appeal and the same

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agency that denied you the first time denies you again. Before

going to litigation there could be that ombudsman.

Do you have any structure and vision and how that would be

structured? The head of the agency, and I am going to reference

GAO as an example where there is a fixed term of 15 years for the

Comptroller General to try to de-politicize the position. Do you

have anything in mind along those lines or is it more just the concept that we need to focus on, trying to establish that concept?

Mr. SMITH. In terms of structure, no. I like your use of the word

de-politicize. I think it is important that this be a fair-minded representative of the requester as well as of the agency. As I thought

about this, you can almost draw a parallel to the thing that so

many of us know as telephone hell when you get into the voice mail

system and you are transferred from this to that to another and

how wonderful it is when there is a living, human being who picks

up the phone and says, may I help you?

It doesn’t happen too much any more. I think about that concept

brought to Government and applied in this way and assuming that

person, A, is knowledgeable, B, has the interests of the citizen at

heart and C, also understands that there may be legitimate concerns of the agency. That is what I am talking about.

Mr. PLATTS. Yes. I think we have a litigious enough society that

where we can try to have an effort that avoids the need for litigation, I think it is something that is worthy of exploration on how

to structure it, how to have it facilitate that cooperation in a way

that is truly de-politicized and fair to all sides. That is the challenge probably. But it is something I want us to look at and see

if there’s a way to try to incorporate it in some of the legislation

that has been proposed, some of the aspects that they have included.

One of the other things you highlighted was the attorneys fees.

Where you use the legal system inappropriately there are in the

Federal rules avenues to go after attorneys fees for misuse, but

that is a rarity. We should not allow Federal officials to use the

legal system for the purpose, in other words, just to stall and delay.

That is something that as we look at legislation—let me get to

a couple of questions, because of the time limitations, that maybe

are broad. I am sure each of you could cite examples that you are

personally familiar with. In fact you have in some of your testimony, examples of delay that were unreasonable and inappropriate.

Where those delays happen, though, one of the questions, I am

not sure, is how informed the requester is kept of the delay and

the reasons for the delay. I would be interested if all three of you

would want to expand on your personal familiarity that this agency

is really good at saying, well, it is going to be 6 weeks or 10 weeks

and this is why. They keep you informed and others that basically

tell you nothing and you are just in limbo unless you are after, and

it is kind of a best case/worst case scenario that you are familiar

with would be helpful?

Mr. Smith, would you like to begin?

Mr. SMITH. I can recall one very specific example that occurred

in Dayton, OH, when a reporter there filed, I believe, over a 3-year

period nine separate requests with the Department of Health and

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Human Services. After one of those requests had aged about a year

he called and was told by the agency representative ‘‘Are you really

sure you want to keep this thing alive?’’

The reporter said, ‘‘Yes, absolutely, of course. Why wouldn’t I?’’

And the agency representative said, ‘‘Because most people don’t;

they give up.’’ That is, in my estimation lousy service and a horrible way to respond.

Mr. PLATTS. Instead of facilitating a completion, you are trying

to discourage it from going forward at all.

Mr. SMITH. Yes, sir.

Mr. SCHWARTZ. I will actually followup on that. We don’t make

too many requests at CDT. We hear about other requests. In some

examples, in cases where we have made requests, you have to keep

checking. You have two or three requests in at the same time to

different agencies, and you have to keep checking what they told

you and different time lines that they are coming back, etc., making it extremely complex for someone that wants to put in a request on one subject that goes to different agencies.

That is one of the reasons we think that the online tracking tools

and some of the tracking pieces from the Open Government Act

make sense. It gets at the point that Representative Maloney made

earlier of where does this thing stand 2 or 3 years down the line?

You can go back and take a look at it. That would have been very

helpful in the cases that we had. We were waiting for substantial

periods of time.

Mr. PLATTS. Mr. Tapscott.

Mr. TAPSCOTT. Several years ago at the Heritage Foundation we

were asked by Scripps-Howard News Service to do a statistical

analysis of the effectiveness of the COPS Program, which we did

and published. Very soon after we published the results of that

study the Justice Department retained a couple of academics to do

a similar study. As soon as their names were announced they

asked us for our data which, within about 30 seconds of receiving

their request we provided that data.

When we asked those two academics who were studying the

question on behalf of the Justice Department for their data, they

refused to provide it. This didn’t prevent the Justice Department

from issuing a news release touting the results of their study, but

nobody could check the data upon which that study was based.

We continued to ask for that data. We did finally receive it, but

only after one of your colleagues on another committee put in a call

to the Attorney General. Not everybody has access to the Attorney

General.

Mr. PLATTS. Right. Is there an agency that you would identify as

the best case that handles FOIAs in the most efficient way, again

based on your own experiences with this process? If we have one

we should look to try to model as doing maybe not perfect, but better than others?

Do none jump out?

Mr. TAPSCOTT. Not as models to emulate, no.

Mr. PLATTS. Maybe models not to emulate.

Mrs. Maloney, I don’t know if you have questions.

Mrs. MALONEY. I do. Thank you, Chairman Platts and Ranking

Member Towns for your interest. I think we really need to update

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this law. The fact that it says you should get a response in 10 days

and absolutely no one is adhering to that, and maybe they can’t

with the backlog that is there.

What is really startling to me is news agencies that are in the

position with staff and support and in the job of doing a story are

having trouble getting information. You can imagine what Joe

Blow or Jane Blow, how hard it is for them to get any inquiry answered.

I thought it was interesting where the news organizations said

they can’t afford to go into court. Well, how can a citizen afford to

go into court? There is really no punishment now for an agency not

responding. Very startling, I thought, was Mr. Smith’s statement

that one reporter kept calling and calling and they said, well, we

just thought we would never have to respond because we usually

wait a year or two before we respond and usually most people give

up.

So, it shows we have to put some type of enforcement behind it

that is reasonable. Obviously, with limited resources and so forth

that has to be taken into consideration, but a law that has no teeth

and no enforcement is not really a law; it is a joke. I think we really have to update it. It is an important law. It is one we need to

work on.

I thought Mr. Tapscott’s statement that one agency, when inquired about salary levels, said this was personal information of

what an administrator is paid is absolutely ridiculous. I think we

are all public employees. The public pays us and is entitled to know

what our salaries are. But I think it underscores the cavalier response that some agencies have to not hand out any information.

If a news agency can’t even get what the pay scale is in an agency, what does that tell you? That is redacted. What I am hearing

from so many of my constituents is that everything is redacted.

I think we need something more than an ombudsman, I think we

need a review of the redactions to see whether they are active or

not. That is basically what it is. To say that you can go to an administrative review within the agency that is telling you you can’t

see that information, I would suggest that when we get this report

back from whomever it will be that in the administrative review

Joe Blow and Jane Blow and possibly the new agencies never win.

I would like to ask the panel, have you ever been involved in an

administrative review of redactions or really turning down your request and what was your experience in the administrative reviews?

I must say we are not getting the story out. I try to know what

is going on. I was not aware that you had the administrative review. Have you used the administrative review or have your reporters or other news agencies, when denied information or when

redactions appear to be excessive, have you gone to the administrative review process which was mentioned?

Mr. SMITH. Ma’am, if we have I am not familiar with it, but we

sure have spent a lot of money on attorneys.

Mrs. MALONEY. If you could look into how newspapers have used

the administrative review process and see whether or not that has

been successful for them or not, I think that would be information

that the chair would like to see and I would like to see it, too.

What is your experience with the administrative review process?

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Mr. SCHWARTZ. Representative Maloney, we have had a review,

an administrative review on cost issues in terms of we are a public

interest organization, we are saying that we are going to post this

information that we are receiving on the Internet for the public.

We were going to make it publicly available.

This agency wanted us to pay. We made a case. There was a review. They told us that we still have to pay. We decided that the $150 that it was costing us was less than

we would spend bringing it to court. I think this is the case in a

lot of cases. We just paid the money and got the documents, even

though we felt that it was the wrong decision.

Mr. TAPSCOTT. Congresswoman, I have been involved in several

administrative appeals as a reporter, specifically covering the General Services Administration some years ago. GSA frequently used

the redaction process to avoid providing the kinds of information

that it seemed to us at the time should have been provided.

I have occasion to ask reporters frequently now, when they tell

me they have been denied, are you going to do an administrative

appeal? More often than not they look at me either like I am nuts

or they laugh at me.

Mrs. MALONEY. When you did an administrative review, did you

win?

Mr. TAPSCOTT. No, never.

Mrs. MALONEY. You did not?

Mr. TAPSCOTT. No.

Mrs. MALONEY. So, see, I think most people will think, hey, I’m

going to go back to the same person who told me I can’t see it for

an administrative review. I am not going to win in that process. I

don’t think people trust it.

What I find problematic, and I might sound a little like a Republican now because a lot of my Republican colleagues——

Mr. PLATTS. We don’t mind.

Mrs. MALONEY [continuing]. Want to cut back Government, I

think, too much. I’m a Democrat. I think Government does a lot of

great things to help people and Government does a great job and

we need to have more people working in the FOIA office and so

forth. Gosh, what was the point I wanted to make?

Anyway, I am just really concerned that the public is not getting

this information, that it is not accessible and it is really problematic. I am very sensitive to homeland security and national security

issues, particularly today when we had quite a scare in the House

of Representatives. We evacuated, I think, in about 3 minutes. It

reminded me of the day of September 11th.

But outside of national security, have members of your organization, I would like each of you to mention this, have you identified

specific areas where there are increasing conflicts with agencies in

gaining access to Government records and proceedings outside of

national security? Is there any particular area where you are having more trouble than others?

Mr. SMITH. I don’t know that I can cite any one particular area,

but over time we have seen an increase in the number of turndowns that we have received.

Mrs. MALONEY. Yes. Well, I have had some constituents say they

finally get the paper 2 years later and the whole page is redacted.

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I mean not the whole page; the whole page could not be sensitive

or personal or national security.

Mr. SCHWARTZ. We are in a privacy organization and we have

been seeing an increase in misuse of the Exemption 6 of the Privacy Exemption in the way that you said where salaries are requested.

Mrs. MALONEY. Can you give us some examples?

Mr. SCHWARTZ. There have been several cases, particularly from

the Department of Justice where employees that worked on a particular issue that signed a memo, etc., where their names are

blacked out.

Now, doing their job is not private. It is part of what they are

doing. The fact that their name is on the document is not private

information. If it had personal information about their personal

lives, that would be different. But the fact that they are involved

in a particular case and that their name is on a memo does not

make it personal information.

Mrs. MALONEY. If you have ideas of how you think this law

should be changed, in addition to the sort of broad sweeps that you

put in your testimony, such as that specific.

Now, personally I am offended that information that should be

out there for the general public, that they are putting up barriers

so you can’t give that information out on a Web site. I don’t understand that.

Issues are complicated. I see my time is up. I thank the chairman for his attention to this subject.

Mr. PLATTS. Thank you, Mrs. Maloney.

I will try to squeeze a few more issues in here. One of the avenues in trying to look at how we proceed to try to strengthen FOIA

in the independence issue and the ombudsman issue, do the three

of you have an opinion on the possibility if these ladies and gentlemen were in this room they would cringe at being assigned more

work, but our Inspectors General throughout every department and

agency, I spoke to their annual conference yesterday in Philadelphia.

They are an important independent aspect. In fact, we are looking at trying to strengthen their independence. There is legislation

that Congressman Cooper has introduced. We have looked at it and

we are trying to see how we can move forward to strengthen their

independence. Are they an avenue, if given the resources to expand

their responsibilities to include within their respective departments

and agencies the ability to review FOIA compliance?

Mr. Tapscott, it sounds like you don’t think that would work.

Mr. TAPSCOTT. I would be very hesitant about doing that because

in my own experience with a number of the IGs over the years, and

more important the IG staffs, it is not unusual for an IG staff to

be part of the problem rather than part of the solution. They have

an interest, for whatever reason, in protecting rather than exposing

problems within an agency.

I think the problem is not so much the FOI officers themselves

within the agency. More often than not the problem is the deputy

program manager or the deputy assistant secretary or the GS–13

administrator who simply will not provide the documents that the

FOIA officer is trying to get.

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Mr. SCHWARTZ. I somewhat agree with that. I think that some

IGs are very good and very independent. Some have more questionable histories. So the question is, really, can you set up an independent ombudsman or an independent body that can do the reviews, that can report on FOIA compliance over time.

In some cases I would say that the IG is the best place to put

it, but I do see what Mr. Tapscott is saying in other cases. We have

run into IGs that are part of the problem as well. That could be

the case for any independent body that you set up.

Mr. PLATTS. My thought is if you are going to look at IGs it

would be after strengthening their independence with fixed terms

and allowing them especially in some of the smaller departments

and agencies where the IG is appointed by the agency head, that

just tells us how much independence there is to begin with when

you are appointed by the person you are actually charged with kind

of overseeing. So, I agree that we would have to be strengthening

that independence before looking to expand them as an independent entity in looking at FOIA compliance.

Mrs. Maloney may have touched on this a little bit. Mr. Smith,

this relates probably most directly to you or maybe Mr. Tapscott

in your prior service in the media. The expedited review process

which is newer, how familiar are you with requests made under expedited review and your belief on how compliance with expedited

review is better than typical FOIA requests or is it the same, no

real difference?

Mr. TAPSCOTT. Expedited review means they tell you no sooner.

Mr. PLATTS. They tell you another story?

Mr. TAPSCOTT. They tell you no. I am not exaggerating when I

say that. I am not aware and I am not presuming to have a comprehensive knowledge of all the expedited requests, but I have not

heard reporters coming and saying, hey, this expedited review process is a great thing.

Mr. PLATTS. It doesn’t seem to have made any difference?

Mr. SMITH. I concur. I don’t think we would be sitting here today

making these recommendations if this were at the top of the solution file.

Mr. PLATTS. The change in policy in the fall of 2001 with the Attorney General, I think I probably know what your answers are,

but your belief is that lessened access because of changing the presumption or has not really had an impact, and that the compliance

with FOIA today is pretty much the same as before; it is not an

executive action, it is a statutory problem that we have.

Mr. SMITH. Inferentially, I think it has had a very big effect. It

is leadership of a kind. I think Mark made the point a moment ago

when you were asking about the Inspectors General. Ultimately it

comes down to leadership. Is there a bias in favor of openness or

is there a bias to be closed? It is a heck of a lot easier to say no

than it is to say yes.

I think that memorandum made it much, much easier for folks

to say no.

Mr. SCHWARTZ. I have had conversations with FOIA officers

where I have asked them that question, have you been holding

back documents that you would have released in the past and their

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answer was yes, that they have specifically denied requests that

they would have accepted in the past.

Mr. TAPSCOTT. I think the National Security Archive, one of the

questions that they asked back in 2003 was specifically, has that

memo made any difference? If I recall correctly, and I could be corrected, I believe only 5 of the 35 agencies indicated that it had

made any difference at all.

Frankly, that did not surprise me because again it is not the senior level folks in agencies that made the day-to-day decisions about

FOIA, it is the career people. Frankly, they don’t feel too much concern about ignoring directives from John Ashcroft or his predecessor.

Mr. PLATTS. And that goes to the issue of consequences?

Mr. TAPSCOTT. Absolutely.

Mr. PLATTS. It is just human nature if you know that failure to

do something—I have a 6-year old and an 8-year old. If I tell them

do it and they don’t, well, it is maybe bedtime but nothing is going

to happen if I don’t get in bed and lay down. It is probably one of

the hardest parts of being a parent, making sure there are consequences so they learn that lesson. But in the Federal Government it seems like we just shy away from consequences of any

kind.

Mr. TAPSCOTT. Mr. Chairman, if you ask the Justice Department,

Mr. Nichols how many times the Justice Department OIP office has

directed an agency to change a FOIA decision, both before 2001

and after, I am almost certain you will see that there is no difference.

Mr. PLATTS. Yes, and actually I think in his answer when I

asked his familiarity with any instances when Justice has directed

somebody to do something because of non-compliance, he wasn’t

aware of any that he could cite. I don’t think anyone behind him

that was assisting him had any additional information to add to

that.

Mrs. Maloney, do you have additional questions?

Mrs. MALONEY. Yes, I do. I would like to ask Mr. Schwartz, you

mentioned in your testimony your concern with the congressional

designation of so-called B–3 exemptions, the categories of records

exempt from FOIA and public disclosure. Would you elaborate on

what the B–3 exemptions are? Anybody can answer this, but if you

would start, and could you give us one example of a category that

was given a B–3 designation and explain how this category could

have been better handled for public disclosure purposes?

I would like to followup and ask all of the panelists if they would

like to discuss it, if you would like to discuss the exemptions. Do

you think they are too broad, that they should be more narrow?

How would you change the exemptions? Do you think they are

abused? I specifically want Mr. Schwartz to respond to the point

that he made in his testimony.

Mr. SCHWARTZ. A B–3 exemption is an exemption where Congress specifically exempts one category of information from the

Freedom of Information Act. So, when Congress says this is exempt

from the Freedom of Information Act, this type of information, it

becomes a B–3 exemption.

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Mrs. MALONEY. How many? There are six of them now, right?

How many B–3 exemptions are there now?

Mr. SCHWARTZ. I don’t have the list. I don’t know if either of my

colleagues have it.

Mrs. MALONEY. In other words, how could we control this without going to a review process by writing the law possibly more explicitly so that the salary ranges of employees of the Federal Government are subject to a FOIA request?

Mr. SCHWARTZ. Well, in that case it is the agency saying that

this falls under B–6 or the privacy exemption, and in that case

someone could bring the issue to the courts and fight it out in the

courts. I mean we know that people don’t do that.

Mrs. MALONEY. We already know no one is going to the courts.

Mr. SCHWARTZ. Right, but in a B–3 case, though, the presumption is with the Government. That is really where the concern is.

We are pushing more information so that even in the court the one

remedy that we do have out there in the courts is that it is harder

to bring those kind of cases.

Mrs. MALONEY. Because the Government makes the decision of

what a B–3 exemption is? Is that what you are saying?

Mr. SCHWARTZ. Congress has made that decision and the Government is interpreting it, saying that this is what Congress specifically wanted. For example, as part of the Homeland Security Act,

voluntarily submitted information from industry about potential

concerns in their critical infrastructure is now exempt from the

Freedom of Information Act under a B–3.

Now, it is our contention that this would already be exempt

under B–1, which is a national security concern, or B–4 which is

confidential business information, or an existing law enforcement,

B–7. So there are three possible places that this stuff could already

be exempt. Then there would at least be the presumption that you

could have this discussion in front of a judge to say——

Mrs. MALONEY. Oh, I see. So when the B–3 is used, the Government makes the decision and they interpret it so they are in a

stronger position.

Mr. SCHWARTZ. Correct.

Mrs. MALONEY. So how do you suggest we change that?

Mr. SCHWARTZ. The best way to go about it is to stop using the

B–3 for every piece of information that comes around. We are starting to see a lot more bills. Every Congress we see more and more

bills that say, well this needs to be exempted with a B–3 exemption, when it falls under the other exemptions. That is why those

exemptions are there. By putting everything under a B–3 we are

starting to cloak a lot more information that wasn’t originally

meant to be cloaked.

Mrs. MALONEY. That is very discouraging and problematic.

Thank you.

Mr. PLATTS. Thank you, Mrs. Maloney. It might be perfect timing

there. My understanding Mrs. Maloney, is that in the B–3 exemption there are 140-ish different——

Mr. SCHWARTZ. That sounds right. That is correct.

Mr. PLATTS. There are 140-ish spots in the code where we have

exempted, Congress in recent years or over several years. So it is

a pretty regular practice of late.

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On the salary, I meant to mention earlier that request for salary,

public information, as a regular visitor to third and fourth grade

classes to talk about my job, one of the guaranteed questions is

how much I make. If I said I’m not telling you, I’d better run for

the door because those third and fourth graders are going to get

it out of me one way or another.

I want to thank each of you for the valuable time you shared

with us in your preparation of your testimonies and your time here

today in your oral testimonies. Open government is something that

is so important to the way we operate as a Nation.

Your insights into how we can strengthen the FOIA legislation

as we go forward is so important because you have been out there

and in various ways experienced it as requesters and your input is

very helpful to us as we go forward.

We will look to work with Senator Cornyn and Lamar Smith and

Congressman Sherman and others who have put forth legislation

on how we can try to advance this cause in a positive way and

strengthen what we are all after, which is a successful open government that is doing good work for all of our fellow citizens.

So thanks for being with us. We are going to keep the record

open for 2 weeks. If you have anything additional you would like

to submit, please feel free to do so.

This hearing stands adjourned.

[Whereupon, at 4:28 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follow:]

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