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ADMINISTRATION OF THE FREEDOM OF

INFORMATION ACT: CURRENT TRENDS

HEARING

BEFORE THE

SUBCOMMITTEE ON INFORMATION POLICY,

CENSUS, AND NATIONAL ARCHIVES

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

MARCH 18, 2010

Serial No. 111–84

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

(

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

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

CHRIS VAN HOLLEN, Maryland

HENRY CUELLAR, Texas

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

PETER WELCH, Vermont

BILL FOSTER, Illinois

JACKIE SPEIER, California

STEVE DRIEHAUS, Ohio

JUDY CHU, California

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

BLAINE LUETKEMEYER, Missouri

ANH ‘‘JOSEPH’’ CAO, Louisiana

RON STROMAN, Staff Director

MICHAEL MCCARTHY, Deputy Staff Director

CARLA HULTBERG, Chief Clerk

LARRY BRADY, Minority Staff Director

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND NATIONAL ARCHIVES

WM. LACY CLAY, Missouri, Chairman

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DANNY K. DAVIS, Illinois

STEVE DRIEHAUS, Ohio

HENRY CUELLAR, Texas

JUDY CHU, California

PATRICK T. MCHENRY, North Carolina

LYNN A. WESTMORELAND, Georgia

JOHN L. MICA, Florida

JASON CHAFFETZ, Utah

DARRYL PIGGEE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on March 18, 2010 ............................................................................ 1

Statement of:

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

of Justice; Miriam Nisbet, Director, Office of Government Information

Services, U.S. National Archives and Records Administration; Larry

F. Gottesman, National Freedom of Information Act Officer, Office

of Environmental Information, U.S. Environmental Protection Agency;

and Valerie C. Melvin, Director, Information Management and Human

Capital Issues, U.S. Government Accountability Office ............................ 16

Gottesman, Larry F. .................................................................................. 41

Melvin, Valerie C. ...................................................................................... 50

Nisbet, Miriam ........................................................................................... 32

Pustay, Melanie ......................................................................................... 16

Sobel, David, senior counsel, Electronic Frontier Foundation; Sarah

Cohen, Knight professor of journalism, Duke University, on behalf of

Sunshine in Government Initiative; Adina H. Rosenbaum, director,

freedom of information clearinghouse, Public Citizen; David Cuillier,

assistant professor, University of Arizona School of Journalism; and

Tom Fitton, president, Judicial Watch ........................................................ 72

Cohen, Sarah ............................................................................................. 86

Cuillier, David ........................................................................................... 106

Fitton, Tom ................................................................................................ 116

Rosenbaum, Adina H. ............................................................................... 98

Sobel, David ............................................................................................... 72

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

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

Missouri: ........................................................................................................

Prepared statement of ............................................................................... 3

Prepared statement of Mary Ellen Callahan .......................................... 8

Cohen, Sarah, Knight professor of journalism, Duke University, on behalf

of Sunshine in Government Initiative, prepared statement of ................. 88

Cuillier, David, assistant professor, University of Arizona School of Journalism, prepared statement of ..................................................................... 108

Fitton, Tom, president, Judicial Watch, prepared statement of ................... 118

Gottesman, Larry F., National Freedom of Information Act Officer, Office

of Environmental Information, U.S. Environmental Protection Agency,

prepared statement of ................................................................................... 43

Melvin, Valerie C., Director, Information Management and Human Capital Issues, U.S. Government Accountability Office, prepared statement

of ..................................................................................................................... 52

Nisbet, Miriam, Director, Office of Government Information Services, U.S.

National Archives and Records Administration, prepared statement of .. 34

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

of Justice, prepared statement of ................................................................ 20

Rosenbaum, Adina H., director, freedom of information clearinghouse,

Public Citizen, prepared statement of ......................................................... 100

Sobel, David, senior counsel, Electronic Frontier Foundation, prepared

statement of ................................................................................................... 75

(1)

ADMINISTRATION OF THE FREEDOM OF

INFORMATION ACT: CURRENT TRENDS

THURSDAY, MARCH 18, 2010

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND

NATIONAL ARCHIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:43 p.m. in room

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

Present: Representatives Clay, Norton, Chu, and McHenry.

Staff present: Darryl Piggee, staff director/counsel; Anthony

Clark and Frank Davis, professional staff members; Yvette

Cravins, counsel; Jean Gosa, clerk; and Charisma Williams, staff

assistant; John Cuaderes, minority deputy staff director; Rob Borden, minority general counsel; Adam Fromm, minority chief clerk

and Member liaison; Stephanie Genco, minority press secretary

and communications liaison; Mark Marin, minority professional

staff member; Charles Phillips, minority chief counsel for policy;

and Jonathan Skladany, minority counsel.

Mr. CLAY. The subcommittee will come to order.

Good afternoon and welcome to the Information Policy, Census,

and National Archives Subcommittee.

Without objection, the Chair and ranking member will have 5

minutes to make opening statements, followed by opening statements not to exceed 3 minutes by any other Member who seeks recognition.

Without objection, Members and witnesses may have 5 legislative days in which to submit a written statement or extraneous material for the record.

And welcome to today’s oversight hearing on the administration

of the Freedom of Information Act [FOIA], held during Sunshine

Week, which is focused on educating the public on the importance

of open government.

The purpose of today’s hearing is to examine how agencies process and respond to FOIA requests and to receive a status report on

current FOIA trends.

The FOIA is not perfect. In the 40 years since the bill’s enactment, Congress has continually reexamined and strengthened it.

This reflects the changing nature of government information, but

it also reflects the changing nature of the public’s relationship with

the Government.

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In his own FOIA memorandum on his first full day in office,

President Obama made it clear that executive branch agencies

should administer the FOIA with the presumption of openness, cooperating with the public to respond to requests for information

promptly. And on Tuesday, the President reiterated his commitment to transparency, participation and accountability in a statement on Sunshine Week.

Another recent change also has the potential to improve the

FOIA process. In 2007, Congress created and last year President

Obama stood up the Office of Government Information Services

[OGIS] at the National Archives. OGIS’s mediation and training efforts will have a positive impact on FOIA.

We look forward to today’s hearing to learning more about the

state of the FOIA and about the trends toward improving services,

increasing access, and making Government more transparent.

I want to make it clear that this is an oversight hearing on the

administration of the FOIA and not a forum for any party to advance a pending litigation matter. My staff has spoken with all of

the witnesses and all of the witnesses have agreed not to discuss

any matters that currently are pending before any court. This hearing is not the appropriate venue to try to advance your case.

Witnesses are again asked to abide by the agreement that they

made not to discuss pending court matters. I want to make sure

that there is no confusion about this issue.

I now yield to the gentlewoman from—no, I now yield to the distinguished ranking member, Mr. McHenry of North Carolina.

Hopefully Mr. McHenry will have an opening statement.

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

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Mr. MCHENRY. I do have an opening statement. Thank you, Mr.

Chairman, and sorry for my tardiness.

Thank you all for being here today. This is certainly an important issue the American people should be concerned about, about

access to their Government. And we want to make sure that policies and procedures are being followed appropriately and that openness and accountability that we all seek from our Government is

in fact taking place.

And so, Chairman Clay, I certainly appreciate your holding this

timely and very important hearing. It is the primary responsibility

of this committee to provide rigorous bipartisan oversight of the decisionmaking and spending of our Federal Government. And it is

also the responsibility of this committee to ensure that ordinary

citizens have the access to Federal records so that they, too, may

hold our Government accountable for its actions.

The Freedom of Information Act [FOIA], was designed to do just

that by providing our citizenry with the legal means to access Government information. On the President’s first full day in office, he

issued an official memorandum instructing executive departments

and agencies to make more information public through FOIA as

part of his administration’s commitment to ushering in ‘‘a new era

of open government.’’

The President’s memo also specifically directed the Attorney

General, Eric Holder, to issue new FOIA guidelines to each agency

head. But the administration’s message of openness and transparency has not translated into concrete improvements with FOIA.

The memo’s guidance also does not seem to have been communicated effectively or enforced throughout the Federal agencies.

A report recently, on Sunday, by a private research group, National Security Archive, found that after nearly 14 months, only 13

of 19 agencies that were audited appear to have taken any real

steps to implement the administration’s order. Specifically, only

four agencies including Holder’s own Justice Department, show

both an increase in approved FOIA requests and decrease in denials.

The audit also found ‘‘ancient’’ requests dating as far back as 18

years that are still pending in the FOIA system. Additionally, 35

agencies reported that they had no internal documents showing

how or whether the new FOIA policies are being implemented. It

was truly troubling to find that the typically secretive Treasury Department and the SEC are actually on that list. As a member of

the Financial Services Committee, just like the chairman, that is

of a particular policy concern on the Hill as well.

In light of their role in the allocation of billions of dollars in taxpayer money through the TARP Program and the distressed banks,

and the GSEs, Fannie Mae and Freddie Mac, we should also be

very alarmed to hear this about the Treasury Department.

While in many cases, the handling of FOIA requests has not

changed, in others it has actually gotten worse. The Associated

Press conducted its own review of FOIA reports filed by 17 major

agencies and found that the use of nearly every one of the FOIA

law’s nine exemptions to withhold information from the public actually rose in the fiscal year 2009.

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For example, one FOIA exemption allows the Government to hide

records that detail its internal decisionmaking. The President specifically instructed Federal agencies to stop using that exemption

so frequently, but his message appears to have been ignored. Major

agencies cited that exemption at least 70,779 times during fiscal

year 2009, up from 47,395 times during President Bush’s final year

in office, according to the annual FOIA reports filed by Federal

agencies.

It is clear that President Obama’s instructions have been widely

disregarded, but the administration still maintains that it has been

making ‘‘clear progress’’ in turning around the FOIA process at

Federal agencies that have often been adverse to public disclosures.

Progress may, indeed, be slow, but over a year into his administration, the American people should be seeing more transparency

than this, especially from agencies that are the most spendthrift

with their tax dollars.

It is my hope that our witnesses in this first panel will be able

to shed some light on this over-reliance on certain FOIA exemptions and the delay in implementing the President’s directives.

Thank you, Mr. Chairman, for your leadership of this committee

and your work across the aisle and even within your own caucus

to make sure that we have good oversight over this administration

and the Government generally.

Thank you.

Mr. CLAY. Thank you, Mr. McHenry, for that opening statement.

If there are no additional opening statements, the subcommittee

will now receive testimony from the witnesses before us today.

I would now like to introduce our first panel, but before I do that,

I would like to also welcome our newest panel member here, our

newest committee member here, Ms. Judy Chu from the great

State of California, who took Ms. Watson’s place. So thank you for

being willing to serve, Ms. Chu. I appreciate it.

Our first witness will be Ms. Melanie Pustay, Director of the Office of Information Policy [OIP], at the U.S. Department of Justice.

Ms. Pustay started in the Department in 1983 and became Director

of OIP in 2007.

She manages the Department’s responsibilities related to FOIA,

including ensuring compliance with the FOIA, adjudicating all Department appeals from denials under the FOIA, and handling

FOIA litigation matters. She has received the Attorney General’s

Distinguished Service Award for her role in providing legal advice,

guidance and assistance on records disclosure issues.

She graduated from American University’s Washington College

of Law and received her B.A. from George Mason University.

Welcome.

Our next witness is Ms. Miriam Nisbet, the Director of the Office

of Government Information Services at the National Archives and

Records Administration. She serves as the Federal FOIA ombudsman, providing mediation services to resolve disputes between

FOIA requesters and administrative agencies.

Previously, she was Special Counsel for Information Policy at the

National Archives and Deputy Director of the Office of Information

and Privacy at the Department of Justice.

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Ms. Nisbet received a B.A. degree from the University of North

Carolina at Chapel Hill and a J.D. degree from the University’s

School of Law. She is a Tarheel.

Mr. MCHENRY. And if I may interject there, though they are not

in the NCAA tournament this year, at least they got a win against

William & Mary.

Mr. CLAY. Well, the ACC is well represented. OK? [Laughter.]

Our next witness is Ms. Mary Ellen Callahan, Chief Privacy and

FOIA Officer at the U.S. Department of Homeland Security. She

could not be with us today. Without objection, her written statement will be entered into the record. In addition, Ms. Callahan has

agreed to respond to Members’ questions for the record.

[The prepared statement of Ms. Callahan follows:]

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Mr. CLAY. And after Ms. Nisbet, we will hear from Mr. Larry F.

Gottesman, the National Freedom of Information Officer for the

U.S. Environmental Protection Agency. He is responsible for the

day to day operations of the Agency’s National FOIA Program, providing policy direction on Agency-wide FOIA matters, and guidance

to the Agency’s FOIA officers and coordinators.

During his tenure, the Agency has reduced its FOIA backlog by

more than 96 percent. Previously, he was an Attorney at the U.S.

Department of Labor, providing legal counsel and policy advice on

FOIA, the Privacy Act, Federal Records Act, Federal Advisory Committee Act, Administrative Procedures Act, and congressional oversight requests.

Thank you for being here.

Our next witness will be Ms. Valerie C. Melvin, Director of Information Management and Human Capital Issues within the U.S.

Government Accountability Office’s Information Technology Team.

She is primarily responsible for studies of issues concerning health

information technology, IT human capital, and access to government information.

Ms. Melvin graduated from the University of Maryland with a

B.S. degree in business administration and a master’s degree in

management information systems. And I must say that she picked

a great college.

Welcome back. She is a certified government financial manager.

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

forward to their testimony.

It is the policy of the Oversight and Government Reform Committee to swear in our witnesses before they testify.

Would you all please stand and raise your right hands?

[Witnesses sworn.]

Mr. CLAY. Thank you. You may be seated. And let the record reflect that the witnesses answered in the affirmative.

I ask that each of the witnesses now give a brief summary of

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

complete written statement will be included in the hearing record.

Ms. Pustay, please begin with your opening statement.

STATEMENTS OF MELANIE PUSTAY, DIRECTOR, OFFICE OF INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE; MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT INFORMATION SERVICES, U.S. NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION; LARRY F. GOTTESMAN, NATIONAL FREEDOM OF INFORMATION ACT OFFICER, OFFICE OF ENVIRONMENTAL INFORMATION, U.S. ENVIRONMENTAL PROTECTION

AGENCY; AND VALERIE C. MELVIN, DIRECTOR, INFORMATION MANAGEMENT AND HUMAN CAPITAL ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

STATEMENT OF MELANIE PUSTAY

Ms. PUSTAY. Good afternoon, Mr. Chairman and Ranking Member McHenry and members of the subcommittee. I am pleased to

be here this afternoon to address the subject of the Freedom of Information Act and the efforts of the Department of Justice to imVerDate 11-MAY-2000 13:05 Dec 10, 2010 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 U:\DOCS\61936.TXT KATIE PsN: KATIE
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plement the President’s memorandum on the FOIA, as well as the

Attorney General’s FOIA guidelines.

As the lead Federal agency responsible for implementation of the

FOIA, we at the Department of Justice are especially committed to

encouraging compliance with the act by all agencies, and to fulfilling President Obama’s goal of making his administration the most

open and transparent in history.

The Attorney General issued his new FOIA guidelines 1 year ago

on March 19th during Sunshine Week. The new FOIA guidelines

address the presumption of openness that the President called for

in his FOIA memoranda, the necessity for agencies to create and

maintain an effective system for responding to requests, and the

need for agencies to proactively and promptly make information

available to the Government.

The guidelines discussed the critical role that is played by agency

Chief FOIA Officers and they stressed that improving FOIA performance requires their active participation. The Attorney General

called on all agency Chief FOIA Officers to review their agency’s

FOIA administration each year, and then to report to the Department of Justice on the steps taken to achieve improved transparency. These reports, which were just completed for the very first

time this week, will serve as the means by which each agency will

be fully accountable for its FOIA administration.

My office, the Department’s Office of Information Policy, has

been actively engaged in a variety of initiatives to inform and educate the agency personnel on the new commitment to open government. Just 2 days after the President issued his FOIA memorandum, OIP sent initial guidance to agencies informing them of the

significance of the President’s memorandum and advising them to

immediately begin applying the presumption of disclosure to all decisions regarding the FOIA.

Then, after the Attorney General issued his FOIA guidelines,

OIP held a Government-wide training conference which was filled

to capacity with over 500 agency personnel attending. To further

assist agencies in implementing the new guidelines, OIP issued extensive written guidance which we posted publicly on FOIA Post.

Significantly, OIP provided agencies with concrete steps to use and

approaches to follow in applying the presumption of openness. OIP

described ways to apply the foreseeable harm standard and discussed the factors to consider in making discretionary releases.

Now, beyond these principles of applicable to responding to individual FOIA requests, OIP also provided guidance to agencies on

achieving transparency in new ways. Further, OIP emphasized the

need to work cooperatively with requesters and to make timely disclosures of information.

Last, OIP discussed the key role to be played by those agency

Chief FOIA Offices and we encouraged FOIA professionals to work

closely with those officials.

OIP has also included a discussion of the President’s and Attorney General’s memoranda in the 2009 edition of our Department

of Justice Guide to the FOIA. This book is a comprehensive reference volume on the FOIA. It is compiled by OIP every 2 years,

and it is also available online. You can see that this year we chose

sunshine yellow for the cover, which we thought was very fitting.

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In addition to issuing written guidelines and guidance to agencies, OIP has conducted numerous additional agency-specific training sessions specifically focused on the new transparency initiative.

We regularly provide training to agency personnel on aspects of the

FOIA and those training programs now all include sessions on the

new FOIA guidelines.

OIP has also reached out to the public and to the FOIA requester

community. OIP hosted a requester roundtable over the summer

where we invited any interested members of the FOIA requester

community to meet with OIP and to share their ideas for improving

FOIA administration. There have been numerous followup sessions

and continued dialog with the requester community, which has

been very productive.

In direct response to concerns raised by the requester community

concerning difficulties they had in reaching agency personnel, just

this month on March 4th, OIP issued guidance to all agency personnel, emphasizing the need for good communication with FOIA

requesters and requiring agencies to provide an agency point of

contact to all requesters, as well as to take a number of other steps

designed to improve communication with requesters.

These simple steps have the potential to go a long way to imbuing a spirit of cooperation into the FOIA process as the President

has called for. These training programs and requester outreach activities will be ongoing in the months and years ahead.

Now, I am pleased today to be testifying with Miriam Nisbet, the

Director of the Office of Government Information Services. Our two

offices began collaborating immediately. Resolution of disputes before they reach litigation is a goal shared by both our offices. Given

that shared interest, OIP has teamed with OGIS to help educate

agency personnel on methods they can employ to resolve disputes.

In upcoming months, OIP will be conducting an extensive review

of those agency Chief FOIA Officer reports that were just completed. The items required to be addressed by each Chief FOIA Officer are directly tied to the important transparency principles

enunciated by the President and the Attorney General in their

FOIA memoranda. OIP will make an assessment of where agencies

stand.

In keeping with the President’s and the Attorney General’s call

for all agencies to increase their use of technology, the Department

required Chief FOIA Officers to report on their agency’s use of

technology in the administration of the FOIA. This is the very first

time such data has been collected across the Government.

Mr. CLAY. The witness’ time has expired. Would you like to sum

up?

Ms. PUSTAY. Yes. I have lots of news to report for you.

Mr. CLAY. I know.

Ms. PUSTAY. Looking ahead, in addition to our review of the

Chief FOIA Officer reports, we plan to continue our outreach on

the important issue of transparency, which will include additional

training and further guidance to agencies, as well as one on one assistance and continued outreach to requesters.

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As I have stated previously, we are very committed to achieving

the President’s goal of improved transparency.

Thank you.

[The prepared statement of Ms. Pustay follows:]

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Mr. CLAY. Thank you so much for your testimony, Ms. Pustay.

Ms. Nisbet, you are up.

STATEMENT OF MIRIAM NISBET

Ms. NISBET. Thank you. Good afternoon, Mr. Chairman, Ranking

Member McHenry and members of the subcommittee.

Thank you for the opportunity to appear today during Sunshine

Week to tell you more about the Office of Government Information

Services [OGIS]. We are honored to be part of a Government-wide

effort to improve the administration of FOIA.

As you know, our Office was created through the Open Government Act of 2007 and we opened our doors just 6 months ago, in

September 2009. Since then, we have been working to fulfill our

congressional mandates.

One of those is to review Federal agencies’ FOIA policies, procedures and compliance so that we may make policy recommendations to Congress and the President. The second mandate is to offer

mediation services to resolve FOIA disputes. In addition, we have

been serving as a FOIA ombudsman soliciting assistance from Federal agencies and the public to improve the FOIA process generally.

The right of the public to access information from its government

is fundamental. FOIA is a strong mechanism allowing citizens to

exercise that right, and in the more than 40 years since FOIA was

first enacted, Congress has consistently worked to make it stronger. We hope that OGIS will be an important component of FOIA’s

strengthening process, even though we are a somewhat small part,

with a staff of six, to reach across the entire executive branch.

The U.S. Government received more than 600,000 FOIA requests

in fiscal year 2008. We are, of course, just compiling the numbers

for fiscal year 2009. Only 1.5 percent of those resulted in an administrative appeal and only 0.05 percent of the total requests were

litigated. By those measures, the law works reasonably well.

But the cost of those 321 lawsuits to the requesters, to the agencies, for the courts and passed along to the public are significant.

OGIS has been working closely with the Office of Information Policy at the Justice Department, as well as with other Federal agencies and FOIA requesters and advocates to develop solutions to

help FOIA work more effectively and efficiently. For example, our

experience confirms that simple communication between a FOIA

requester and an agency FOIA professional can go a long way in

preventing disputes.

To enhance communication and provide mediation services,

something that has not been done before in the administrative

process, we are taking five different paths. One has been to work

with agency FOIA public liaisons whose role it is to resolve disputes. In fact, as Melanie mentioned, our first dispute resolution

skills training for FOIA public liaisons is set for next Tuesday, and

we had more than 60 RSVP requests in the few hours after announcing the event to fill 30 slots. We have 130 on our waiting list,

so we know that there is a strong interest.

Second, we are developing a pool of trained mediators who will

formally mediate cases. Third, OGIS staff members are currently

informally mediating cases and have resolved 84 of the 110 cases

brought to us since our doors opened last September. Fourth, we

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are exploring whether online dispute resolution may be a viable avenue, allowing us to use technology in the same way as many commercial entities do.

Finally, we are utilizing existing alternative dispute resolution

programs [ADR], within agencies to work with their FOIA professionals. Specifically, we have met with representatives from the

Departments of Defense, Interior and Veterans Affairs, as well as

the Federal Energy Regulatory Commission who is co-hosting next

Tuesday’s event with OGIS and Justice to set up pilot FOIA and

ADR mediation programs.

To fulfill the second prong of the Office’s mission, OGIS is also

reviewing agency FOIA policy, procedures and practice to determine areas of the law that may need attention. As directed by the

law, we will report on agencies’ compliance to Congress and the

President at the end of the fiscal year. We are already seeing much

greater attention throughout the agencies to the importance of improving FOIA performance as a result of the President’s memoranda on openness in FOIA, the Attorney General’s efforts and

OMB’s Open Government Directive.

Finally, as you know, many people have referred to OGIS as the

FOIA ombudsman. That is a term that was first coined by Senators

Leahy and Cornyn. As an impartial office devoted to FOIA, we

have embraced this informal role as well. OGIS has engaged in regular outreach through presentations, informal meetings, press

briefings and through its Web site.

Finally, there is no question but there is a role for the Office of

Government Information Services to assist Federal agencies and

members of the public, to resolve disputes, to learn where improvement can be made, and generally to better navigate the FOIA process. There is a lot of work ahead of us yet, but in 6 short months,

agencies and the public have expressed a deep appreciation for the

services we provide.

With all of this setting the state in the Office’s early days, we

look forward to becoming instrumental in making FOIA as strong

and effective a tool in public oversight as Congress intended.

Thank you.

[The prepared statement of Ms. Nisbet follows:]

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

Mr. Gottesman, you are up.

STATEMENT OF LARRY F. GOTTESMAN

Mr. GOTTESMAN. Thank you. Good afternoon, Chairman Clay,

Ranking Member McHenry and members of the subcommittee. I

am pleased to appear before you today to discuss EPA’s FOIA program during Sunshine Week.

Let me assure you that EPA is committed to the letter and spirit

of the Open Government Act of 2007, the administration’s open

government and transparency goals. EPA recognizes that emerging

technologies create new opportunities for improving the FOIA processes throughout the Federal sector, and the Agency continues to

collaborate with other Federal agencies in this regard.

Administrator Jackson issued a memorandum to all employees

on April 23, 2009 that communicated her commitment to transparency in all of EPA’s operations. The Administrator said that, as

President Obama stated, the FOIA should be administered with a

clear presumption of openness and that all Agency personnel

should ensure that this principle of openness is applied.

Administrator Jackson also stated that in accordance with guidance issued by Attorney General Holder, EPA offices should exercise their discretion in favor of disclosing documents whenever possible under FOIA and take steps to make information publicly

available on the Agency’s Web site without waiting for a request.

I would like to take a few minutes to explain how EPA is addressing the FOIA backlog embracing the mandates of greater

transparency. First and foremost, the Agency has worked very hard

to reduce its backlog of FOIA requests. In July 2001, there were

23,514 overdue FOIA requests. EPA formed a task force and began

aggressive steps to address the situation. The backlog started to

decrease.

In 2006, the Agency committed to reducing its backlog to not

more than 10 percent of new requests received in any fiscal year.

EPA surpassed this aggressive milestone the very next year and

continues to meet it every year thereafter. In fact, at the end of fiscal year 2009, EPA’s backlog was just 332 requests, or just slightly

over 3 percent of all incoming requests. The Agency has also significantly reduced its overdue appeals.

The Agency embraced the mandate for greater transparency.

EPA made data bases available through its Web site because of information frequently requested through FOIA. For example, EPA’s

Office of Pesticide Programs completely redesigned its electronic

FOIA reading room to make tens of thousands of highly sought

after pesticide science and regulatory records publicly available

without the need to file a FOIA request. The Office established a

dual component electronic reading room by making documents

available on its FOIA Web site. Other parts of the Agency are exploring opportunities to use similar technology to proactively disclose records.

In conclusion, EPA is proud of its accomplishments and continues to look for other opportunities to proactively disclose information to the public and reduce the need to file a FOIA request.

42

I would be pleased to answer any questions from the subcommittee.

[The prepared statement of Mr. Gottesman follows:]

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

Ms. Melvin, you may proceed.

STATEMENT OF VALERIE C. MELVIN

Ms. MELVIN. Thank you, Mr. Chairman, Ranking Member

McHenry and members of the subcommittee.

I appreciate the opportunity to participate in today’s hearing on

implementation of the Freedom of Information Act. As you have

noted, this important statute establishes that Federal agencies

must provide access to Government information so that the public

can learn about Government operations and decisions.

Given its significance, the Congress included reporting requirements in the act to allow its implementation to be monitored. As

you know, under the act, agencies are to develop annual reports

providing numerous statistics on their FOIA processing. Since

2001, we have conducted reviews that draw on these annual reports to describe the status of reported implementation and any observable trends. My statement today briefly discusses our previous

work in this area, as well as selected changes in the FOIA landscape resulting from legislation, policy and guidance.

In our earlier work, we examined the annual reports from major

agencies, generally noting increases in FOIA requests received and

processed and impending requests carried over from 1 year to the

next. We also examined agency improvement plans developed in response to a 2005 Executive order that was aimed at improving

FOIA implementation and included a major focus on reducing backlogs of overdue requests.

We found that the agency improvement plans under review mostly included goals and timetables as required by the Executive

order. Also, in later reporting on agency efforts to reduce backlogs,

we found signs of progress in certain agencies as of September

2007. However, we could not present a complete Government-wide

picture because agencies varied in how and what they were tracking as part of their improvement plans.

The Open Government Act of 2007, which was passed in December 2007, amended FOIA in several ways, including setting up the

FOIA Ombudsman Office within the National Archives and

Records Administration, as has already been discussed. Regarding

the statistics required in the annual reports, the act introduced

several changes, including additional statistics on timeliness and

backlog.

For instance, agencies must break down their response times in

much greater detail, that is, how many requests were responded to

within the first 20 days; how many in the next 20 days, and so on

in 20-day increments up to 200 days, and in 100-day increments up

to 400 days, and finally those that took longer than 400 days.

These new requirements were first reflected in the annual reports

for fiscal year 2008.

These annual reports also reflected a significant change in guidance that the Justice Department provided to agencies on preparing the reports. Specifically, Justice’s May 2008 guidance directed

agencies to omit from their statistics Privacy Act requests which

had previously been included. In a Privacy Act request, the requester asked for information on himself or herself. This change

51

had a major impact on the statistics for certain agencies such as

the Social Security Administration, whose reported requests

dropped by more than 18 million in fiscal year 2008.

In the immediate, these changes to the reported statistics make

year to year comparisons with earlier years problematic. However,

in the future the increased details should help provide a clearer

picture of FOIA implementation at individual agencies and Government-wide.

Further, this type of information will be important in assessing

the effect on FOIA processes of plans that are called for in the recent Open Government Directive issued by OMB. Each agency’s

plan, due in April, is to describe measures to strengthen this FOIA

program, including milestones for reducing any pending backlog of

outstanding FOIA requests by at least 10 percent each year.

Overall, the increased reporting requirements should allow greater insight into FOIA program performance, which is important for

agencies, for Congress and the public to ensure improved implementation of this important statute.

Mr. Chairman, this completes my prepared statement. I would be

pleased to respond to any questions that you or other members of

the subcommittee may have.

[The prepared statement of Ms. Melvin follows:]

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Mr. CLAY. Thank you so much, Ms. Melvin.

And I thank the entire panel for their testimony.

We will begin the 5-minute questioning period with our newest

Member, Ms. Chu.

You may proceed.

Ms. CHU. Thank you, Mr. Chair.

So there were 600,000 requests of the U.S. Government, according to Ms. Nisbet. I was wondering how many of them or what percentage of them were denied.

Ms. NISBET. Those were the figures for fiscal year 2008, and in

terms of the denials, I am going to ask my colleague here, Ms.

Pustay, to answer if I may, because she has the reporting on all

of those figures.

Ms. PUSTAY. In terms of releases of information for last year, for

2009, we had a significant increase from 2009 to 2008 in the number of requests where information was released either in full or in

part. And that, to me, is one of our first measures of improvement,

of significant improvement across the Government in implementing

the Attorney General’s FOIA guidelines.

Ms. CHU. So in other words, you are trying to get a handle on

the statistics now, but you don’t know how many of them were denied at this point?

Ms. PUSTAY. I don’t have memorized how many were denied, but

we have done a comparison for the key agencies between fiscal year

2008 and fiscal year 2009 and releases in full or in part were up

in this past fiscal year, which is an indication of greater focus on

transparency as a result of the guidelines.

Ms. CHU. And a change in policy.

Ms. PUSTAY. Yes, exactly.

Ms. CHU. And has there been a change in the backlog? Do you

know what?

Ms. PUSTAY. Yes, it is another really wonderful indicator. I think

backlogs has always been a very vexing issue for agencies and the

public alike. And again, by looking at the key agencies, backlogs

have gone down almost by half. It is really a dramatic number.

This number I did write down, from 125,000 to about 69,000, so almost a 50 percent reduction in backlog requests from 2009 versus

2008. So the idea that the focus that we have had on backlogs and

improving timeliness, again this past year, as a result of the guidelines, has really taken hold in agencies.

Ms. CHU. That is excellent.

Given the current presumption of openness, has the Justice Department reviewed any agency denials of FOIA requests that the

Bush Justice Department defended in court? And are there any

cases where the Justice Department has decided to reverse the decision on those denials?

Ms. PUSTAY. Once the guidelines were issued last year, there was

a review conducted and of course that has been an ongoing process

of all pending litigation cases to identify any case where there was

good potential for additional releases of information as a result of

application of the new guidelines. And there certainly have been

cases where additional information was disclosed as a result of the

re-review.

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We had on Monday a Sunshine Week event at the Department

of Justice, and we had some speakers highlighting significant accomplishments at their agencies. And the U.S. Trade Representative was one of those speakers. And one of the specific things they

highlighted was the discretionary release that they made in litigation after the guidelines were issued of never before released trade

negotiation documents. So it was really, I thought, a very nice example of additional disclosure that was made.

Ms. CHU. Very good.

Let me talk about a concern that was raised to me from the

Asian American Legal Defense and Education Fund. They had

some concerns. I mean, I think this policy of openness is great, but

they had concerns about whether private information from census

forms could be released in response to a FOIA request.

Can you assure me that there is no reason for them to be concerned about this information coming out in a FOIA request?

Ms. PUSTAY. Right.

Ms. CHU. And how is the privacy of those particular forms protected, which is an especially sensitive subject right now?

Ms. PUSTAY. Right at this moment in time. We just filled out our

form at home.

This is a really excellent question because the challenge with implementing the FOIA and increasing openness is that agencies

have to take into account legitimate interests that need protection

from public disclosure, and personal privacy is obviously at the top

of the list of interest that needs protection.

And so the key to successful implementation of FOIA is properly

balancing the public’s interest in transparency, with individuals’

interests in protecting personal privacy. And that is what agency

officials do every day and that is a big part of what we give training on is how to conduct privacy analysis and make sure that privacy is being protected.

Now, specifically with census forms, though, in addition to privacy protection, which would be very readily and easily applied to

the people who fill out a census form, there is also a statute that

gives protection to information gathered under the census. So there

would be an additional even stronger way to protect that information. You have a statute that protects it. You also have overlapping

protection of a privacy exemption. So it is very, very strongly and

easily protectable.

Ms. CHU. Thank you.

Mr. CLAY. Thank you so much.

Mr. McHenry.

Mr. MCHENRY. Thank you, Mr. Chairman.

Thank you all for your testimony. I certainly appreciate you

being here.

Ms. Pustay, how much is this decline in the backlog of FOIA requests natural at the end of administrations?

Ms. PUSTAY. Oh, I don’t think it is natural at all. I think, in fact,

the opposite would be true. I think that to have a reduction in

backlogs so early in a new administration is quite remarkable. And

to have a nearly 50 percent reduction in backlog is just quite a

good accomplishment. We are not done with our work on reducing

backlogs, and certainly all these elements of transparency, espeVerDate 11-MAY-2000 13:05 Dec 10, 2010 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 U:\DOCS\61936.TXT KATIE PsN: KATIE
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cially I work with agencies to encourage them to make improvements on. We still have work to be done. There is no doubt about

it. But to have done this much on backlog reduction in 1 year I

think is quite a big accomplishment. And I directly tie it to our

focus on this as part of the new transparency initiatives.

Mr. MCHENRY. OK.

Ms. Melvin, with the GAO, has there been research on what is

sort of the natural ebb and flow of these requests?

Ms. MELVIN. We have not looked at the requests recently. Our

work primarily was between 2001, for the annual reports, it was

2002 and 2006. In that timeframe, we did see increases in the

backlogs up through 2006, although we did see a decrease, if you

will, in terms of the rate of increase in the backlogs that were

pending, the pending backlog, I should say. But since then, we

have not seen more recent numbers relative to the actual numbers

for backlog at this time.

Mr. MCHENRY. Ms. Nisbet, your office was created by legislation

in 2007 and you opened I believe in 2009.

Ms. NISBET. September 2009, just about 6 months.

Mr. MCHENRY. OK. So we are still early.

Ms. NISBET. Yes.

Mr. MCHENRY. Where are you in this process of getting up and

running?

Ms. NISBET. Well, we now have our full complement of six staff

members, so that is great. Our sixth member arrived just a few

weeks ago. We are already handling cases and have been handling

cases for a number of months now. We are seeing quite an increase

in our backlog. I am sorry, not our backlog. Oh, we don’t have a

backlog. [Laughter.]

In our caseload. We have in 2010 already more than twice as

many cases as came to us in the last few months of 2009. Now,

granted, a lot of people didn’t know we existed and that is one reason we really appreciate the attention of this subcommittee to our

office. It helps to let people know that our services are out there

and that we are available.

Mr. MCHENRY. So have you begun the process of mediation yet?

Or where are you in that process?

Ms. NISBET. We are handling cases ourselves in what we would

call an informal way. We are putting together a pool of trained mediators. They will be people who are both with the Government and

also outside the Government so that we have a pool of neutral

trained mediators to handle cases. So far, we are doing pretty well

just in using our staff, but we do know that there will be cases that

really require much more time in terms of hours and days, and we

will need to actually devote people just to working on those cases,

but we are getting ready for that.

Mr. MCHENRY. OK. So when does mediation begin? Do you have

your first case?

Ms. NISBET. We would be ready to start just about any time. We

do have a number of people who are sort of ready and standing and

ready to go, but we have not had a case yet that really requires

that.

Mr. MCHENRY. OK.

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Ms. NISBET. So far, we have been able to do it with our own staff

as opposed to hiring trained mediators to come in and handle cases

on an ad hoc basis.

Mr. MCHENRY. And in the 6-months you have been up and running how many requests have you had?

Ms. NISBET. We have had about 110 cases. We have resolved 84

of those. We do still have some right now that are pending that we

are working on. But so far, we have had a very good reception from

the agencies that we have worked with. And we are finding that

we are able to handle them pretty well so far.

Mr. MCHENRY. And who are you intending to help? Just so people understand.

Ms. NISBET. Well, we are intending to help both FOIA requesters

and the agencies to whom they have made requests in overcoming

obstacles that may be keeping the request from being fulfilled in

a timely fashion, or because of substantive reasons. We have had

requests mostly for help from FOIA requesters so far, but let me

tell you, we also have had some requests for assistance from agency

personnel as well who have asked us to help intervene when they

have had a particularly difficult problem with a requester.

So our intention is to do all of that. I mentioned that we are

going to be offering starting next week dispute resolution skills

training. That is something we are doing with the Justice Department, with the help of the Federal Energy Regulatory Commission.

They have a very good ADR, alternative dispute resolution program.

We are doing skills training for FOIA personnel, Government

personnel, to help them better be able to work with requesters and

really just improve customer service. So in that respect, we have

some training that is going to be targeted directly for Government

personnel to help them.

Mr. MCHENRY. Very good. Thank you. Thank you for your service.

Ms. NISBET. Thank you.

Mr. CLAY. Thank you, Mr. McHenry.

Ms. Melvin, do you see any trends emerging over the last year

with FOIA requests or with the agencies?

Ms. MELVIN. The last time that we did a report that actually

talked about trends was in 2008. At that time, as I mentioned earlier, we did see some increase in the pending requests, although

that increase was slowing. We also had seen an increase in the

number of requests that were being received by the agencies, and

that also was flattening out a bit.

Since then, we have not done a study. At that time, it was at a

point when the guidance was changing and we felt that we needed

to give some time to the agencies to really implement new requirements, if you will, in terms of numbers and statistics that they

needed to really assess and report on their progress. That being the

case, I believe that we are now in the process of actually putting

together plans to try to look at this again, but that would have

been the last time that we saw such a trend.

Mr. CLAY. Thank you.

Mr. Gottesman, we don’t often get to hear directly from someone

so directly involved in the FOIA process at an agency. What are

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some of the misconceptions you think the public has about the

work of FOIA officers?

Mr. GOTTESMAN. The work of FOIA officers. I think some of the

misperceptions that we see is really not necessarily our role as a

FOIA officer in helping process and helping create policies to be

more transparent. What we see more and more as an agency is individuals who think that the open Government and the President’s

policies and the Attorney General’s guidelines means everybody

gets everything they want no matter what it is.

And we have seen in the beginning lots of requests that the

Agency protected information because it was confidential business

information or exemption for material. Now, can we please have it

because the President has said give us everything.

And we see people like that who just read about it in the newspaper and just feel that it shouldn’t, just because it is commercial

business information, if it is covered by a Trade Secrets Act, we

want it; we should get it.

And the Agency has made great strides to try to work with those

requesters.

Mr. CLAY. Give me an example of what the Agency has been

doing to reduce the backlog. I mean, I think it is very impressive

that you reduced it at such a dramatic rate. And how has that improved services to requesters?

Mr. GOTTESMAN. We looked at our process. We looked at available data bases. A good example a little while ago is if you want

to export a car to certain foreign countries, you need to get a certificate of conformity from EPA. It is a printout, literally a document that is on a data base. We worked with the office that maintains the data base and actually the data base on our Web site so

individuals who need to get this information don’t have to wait 3

or 4 days or a week or 2 weeks to get the information. With any

internet access, they can go into our data base and within 5 or 10

seconds print out the certificates they need. Of course, for those individuals who don’t have Internet access, of course we will still

make that available to them.

At EPA, we get a lot of requests, probably almost half the requests we get are what we call due diligence requests, where someone is doing a real estate transaction and they need to know what

does EPA know about my property. We are working with our program offices and hopefully we will have it deployed next month or

so where individuals can go on our Web site, put an address in,

and find out what EPA knows about your property.

As it turns out, almost half our requests are no record responses

because people want us to have no information about your property, no adverse information. So if you look at our requests, half

are almost no record responses, and that is what the public wants.

But instead of having to make a request, they will be able to get

that information on their own when they want, anytime they want.

Mr. CLAY. Thank you for that response.

Ms. Nisbet, I can imagine that for an individual FOIA requester

after a lengthy process of not getting access to the information they

seek, your mediation services must be very welcome. Can you give

us a sense of the impact of mediation on agency FOIA officers? And

do they view the process as positive?

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Ms. NISBET. Mr. Chairman, I will go with the end of your question first because I would like to reiterate that we have gotten a

really good strong response from agencies who seem to really welcome our services.

One way that the 2007 amendments to FOIA envisioned not only

that mediation would be provided not only by our office, but there

would be a statutorily recognized role for the FOIA public liaisons

at the agencies to resolve disputes. We believe that with that added

specific responsibility for the FOIA public liaisons throughout the

agencies, working with us, working with the Justice Department,

emphasizing the importance of preventing disputes, to head them

off, to improve communication and to have good FOIA customer

service from the very beginning, that will definitely have an impact.

Thank you.

Mr. CLAY. Let me also ask you, one of OGIS’s responsibilities is

to recommend policy changes to Congress and the President to improve the administration of FOIA. When do you think you will

have enough experience and data to make your initial recommendations to us?

Ms. NISBET. We believe, sir, that we will be able to make at least

a report on what we are seeing within the first year, by the end

of fiscal year 2010. So we are aiming for having a report to you all

by the end of September this year with at least what we are seeing

now, and some recommendations.

Mr. CLAY. Very good. I look forward to receiving it. Thank you.

Ms. NISBET. Thank you.

Mr. CLAY. Ms. Pustay, the Sunshine in Government initiative

has found that agencies have cited at least 250 statutes on the

books to deny information under exemption three of the FOIA

which prohibits release of information that is specifically exempted

from disclosure by another statute.

A recent American University study concluded that just 153 statutes qualify under exemption three, suggesting that 40 percent of

the statutes claimed by agencies are invalid. To avoid further litigation, what else could the administration and Congress do to rein

in the use of this exemption? Do you have any opinions about that?

Ms. PUSTAY. I have actually a couple of reactions to it. First of

all, I think to put transparency on this issue, in fact we have compiled a chart of all exemption three statutes that have been found

to qualify by the courts as exemption three statutes, and have published that on our Web site so that agencies have a ready spot to

go to see statutes that have been found to qualify.

But I guess I would question part of the premise of that question

because until a court rules on the validity of an exemption three

statute, all you have is presumption or guess as to whether something is a proper exemption through statute or not. Ultimately, a

court decides what is a proper statute. That is why what we have

done is compile the statutes that courts have found to qualify.

And then, of course, the FOIA was just recently amended to require that any statute passed by Congress that is an attempt to be

an exemption three statute specifically says that is what it is, and

cites to exemption three. So that should make it a lot easier for

agencies to spot these statutes in the future.

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Mr. CLAY. Thank you for that response.

We have no further questions for this panel. Let me thank you

all for your indulgence, for your time today, and this panel is dismissed. Thank you.

I now would like to introduce our second panel. And our first witness will be Mr. David Sobel, senior counsel at the Electronic Frontier Foundation, which he directs the FOIA Litigation for Accountable Government Project. He has handled numerous cases seeking

the disclosure of Government documents on privacy. In 2006, Mr.

Sobel was inducted into the First Amendment Center’s National

FOIA Hall of Fame.

He was formerly counsel to the National Security Archive and cofounder of the Electronic Privacy Information Center. He is a graduate of the University of Michigan and the University of Florida

College of Law.

Welcome.

Our next witness is Ms. Sarah Cohen, the Knight Professor of

Journalism at the Sanford School, Duke University. Ms. Cohen

worked for 15 years as a reporter and editor, most recently for the

Washington Post. She shared the 2002 Pulitzer Prize for investigative reporting for the Post series, the District’s Lost Children, and

that was quite a series, which uncovered failures by child welfare

agencies that contributed to dozens of children’s deaths.

She has taught journalism courses at the University of Maryland

and is the author of Numbers in the Newsroom: Using Math and

Statistics in News.

Ms. Cohen earned her undergraduate degree in economics at the

University of North Carolina-Chapel Hill, and her master’s degree

in journalism at the University of Maryland.

Does that make you a Terp or a Tarheel?

Ms. COHEN. Tarheel, of course.

Mr. CLAY. OK. [Laughter.]

After Ms. Cohen, we will hear from Ms. Adina Rosenbaum, an

attorney at Public Citizen Litigation Group. Many of her cases involve access to records under the FOIA. She also serves as the director of the Freedom of Information Clearinghouse, providing assistance to journalists, academic organizations and others seeking

information from the Government under FOIA and other open government laws.

Ms. Rosenbaum received her J.D. from New York University

School of Law and her undergraduate degree from Harvard University.

And welcome.

Our next witness will be Dr. David Cuillier, an assistant professor at the University of Arizona School of Journalism. He is chairman of the Society of Professional Journalists’ National Freedom of

Information Committee. He gathered public records as a government reporter and city editor for a dozen years at daily newspapers

in the Pacific Northwest.

Mr. Cuillier was awarded the 2007 Nafziger White Dissertation

Award by the Association for Education in Journalism and Mass

Communication for the top dissertation in the field. He received his

B.A. from Western Washington University and his M.A. and Ph.D.

from Washington State University.

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And welcome to the committee.

Our final witness today will be Mr. Thomas Fitton, the President

of Judicial Watch, a conservative nonpartisan educational foundation that promotes transparency, accountability and integrity in

government, politics and the law. He has 20 years of experience in

conservative public policy. Previously, he worked for America’s

Voice, National Empowerment Television, and was a talk radio and

television host and analyst.

And welcome, Mr. Fitton.

And let me thank all of our witnesses for appearing today. I look

forward to their testimony.

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

hands?

[Witnesses sworn.]

Mr. CLAY. Thank you, and you may be seated.

Let the record reflect that the witnesses answered in the affirmative.

And before we go to the witnesses’ testimony, I want to reiterate

that we will hold the witnesses to their agreements not to discuss

any pending court matters. And I ask that each of the witnesses

now give a brief summary of their testimony. Please limit your

summary to 5 minutes. Your complete written statement will be included in the hearing record.

Mr. Sobel, please begin with your opening statement.

STATEMENTS OF DAVID SOBEL, SENIOR COUNSEL, ELECTRONIC FRONTIER FOUNDATION; SARAH COHEN, KNIGHT

PROFESSOR OF JOURNALISM, DUKE UNIVERSITY, ON BEHALF OF SUNSHINE IN GOVERNMENT INITIATIVE; ADINA H.

ROSENBAUM, DIRECTOR, FREEDOM OF INFORMATION

CLEARINGHOUSE, PUBLIC CITIZEN; DAVID CUILLIER, ASSISTANT PROFESSOR, UNIVERSITY OF ARIZONA SCHOOL OF

JOURNALISM; AND TOM FITTON, PRESIDENT, JUDICIAL

WATCH

STATEMENT OF DAVID SOBEL

Mr. SOBEL. I would like to thank you, Mr. Chairman and the

ranking committee member, Mr. McHenry, for granting me the opportunity to appear before the subcommittee and share my views

on implementation of Freedom of Information Act policy throughout the Government.

As senior counsel to the Electronic Frontier Foundation, I am engaged in submitting and litigating requests for information dealing

with a fairly wide range of agency information concerning technology policy and how Government use of new technologies potentially impacts individual rights.

In addition to my work on behalf of EFF, I also serve on the

Steering Committee of the OpenTheGovernment.org Coalition, and

I have also represented a fairly wide variety of public interest and

news media organizations during the course of 25 years of litigating cases.

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istrations, so I feel that I have a fairly broad view of the issue, and

I would like to emphasize the fact that I have never seen this as

a partisan issue. I think we have seen some of the rhetoric from

different administrations kind of ebb and flow, but primarily the

issue is one of bureaucratic culture and limited resources. And I

think those are the two really most significant factors in how, from

the requester perspective, the Freedom of Information Act actually

works.

Certainly in assessing trends over the past year, I think everyone

must acknowledge the very positive statements that have emanated from the highest levels of the administration, starting with

the President on January 21st of last year, Attorney General Holder’s memorandum which was issued a year ago tomorrow, and as

Ms. Pustay referenced, the more specific policy guidance that was

issued by her office, the Office of Information Policy. I think all of

those statements have been very positive and there is not much to

fault in any of the things that have been said. I think the right

message has been conveyed.

The problem is that for one reason or another that message does

not seem to have filtered down to the front lines. I know that the

whole panel is going to speak about issues that the requester confronts. I would like to speak specifically about issues that arise in

the litigation context. And for that reason, I would like to focus on

experiences that I have had that indicate that front line litigating

attorneys in the Department of Justice have not received the message that there is a new pro-transparency policy.

At the time that the President took office, EFF had about a half

dozen pending cases in the Federal courts. These cases had arisen

first under the Bush administration, and I thought that these cases

were interesting opportunities to see what effect, if any, the newly

articulated policy might have. In all of those cases, once the President made his statement and the Attorney General issued his

memorandum, we suggested to the DOJ attorneys handling the

cases that perhaps the cases should be stayed to give the agencies

an opportunity to consider whether the new policy would have an

impact on the disclosures at issue in that case.

Not only did the DOJ attorneys in all but one of those cases reject the suggestion, but they actively opposed motions that we filed

with the courts to stay the cases to allow for that reconsideration.

Once the policies were in fact considered to whatever extent they

were, we were able to discern no real difference, which is to say

that despite the emphasis that the President and Attorney General

put on agencies making discretionary releases of information, we

saw virtually no additional information released in our cases after

the new policy went into effect.

I have cited in my written testimony one specific example in one

of our cases of information that was withheld, in that case by the

FBI, under circumstances where we were subsequently able to look

at the actual information that was withheld, comparing a released

version of the documents with the withheld version. And I would

refer you to my testimony for the details of that, which is detailed

on my organization’s Web site with a side by side comparison of

documents.

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I think on this point, in terms of litigation posture, it is important to emphasize that one of the key points of Attorney General

Holder’s memo was the claim that the Justice Department’s position with respect to litigating and defending cases was going to

change. He specifically rescinded the policy that had previously

been established by Attorney General Ashcroft and suggested that

the Justice Department was going to be taking a harder look at

cases when it came to deciding whether or not to defend.

As I say, I have not seen any change, but we would like to be

in a position where we can really specifically quantify whether

there has been a change. So we have suggested to top Justice Department officials that the Department consider releasing a list of

cases that they have declined to defend. This would give us concrete information. This would be the transparent way to see whether that policy is in effect having an impact.

Mr. CLAY. You can go ahead and summarize.

Mr. SOBEL. The Justice Department has refused that request,

and I would urge the committee to consider asking the Department

for that information, a list of cases that they have declined to defend under the Holder policy.

I just want to emphasize one point that hasn’t been raised yet

today. I would like to note that in the Senate the other day, Senators Leahy and Cornyn introduced new legislation, the Faster

FOIA Act, to establish an advisory committee to look at the problem of FOIA processing delays. I think it is past time that issue

be studied and I would urge this subcommittee to look at that issue

as well.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Sobel follows:]

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Mr. CLAY. Thank you for your testimony and suggestions.

Ms. Cohen, you may proceed, 5 minutes.

STATEMENT OF SARAH COHEN

Ms. COHEN. Thank you, Chairman Clay, Ranking Member

McHenry and members of the subcommittee. I also want to thank

you for the opportunity to talk about FOIA today on behalf of the

Sunshine in Government Initiative. And I would also like to thank

you for your continued interest in the ability of the public to access

important Federal records and information.

In 15 years as an investigative reporter and editor, mainly at the

Washington Post, I frequently depended on the law to gain access

to important administrative and program records. Last year, I

joined the faculty of Duke University as its Knight Chair in journalism. And while I am still close to daily journalism, I am now

more free to report on my own experiences and those of colleagues

who are still in the business.

Mr. Chairman, we have seen some improvements in transparency in government, but in general, the FOIA process has remained largely unchanged. President Obama’s day one transparency initiative raised the hopes of those who depend on FOIA

to inform citizens of the activities of Government taken in the

public’s name and with the public’s money.

There have been some improvements, starting with the President’s decision to voluntarily release White House visitor logs,

largely as a sign to other agencies and to ease the path to requesting financial disclosures. Some reporters are saying that some

agencies, in particular EPA, are opening up records without requiring FOIAs anymore. But based on my own experience and reports

from other journalists and others who work with public records,

transparency for the purpose of Government accountability has

changed very little.

I would like to suggest four areas in which the FOIA doesn’t

work the way it was intended, and hasn’t for the generation in

which I have been a reporter. The first is that delays seriously inhibit FOIA’s promise of disclosure. The ability to wait out a FOIA

request remains the most glaring power imbalance between requesters and agencies and releases are often irrelevant by the time

they are completed.

One reporter in Texas recently has not received documents promised from an agency for more than a year. And I would like to mention that I have never received a FOIA request in the time required

by law.

In 1996, Congress recognized that administrative records held in

electronic form had become one of the most difficult sticking points

in the law, and enacted several changes, but few agencies have

kept the promise of those reforms. Agencies are required to post

online frequently requested records, yet the correspondence of

Treasury Secretary Geithner, details on reconstruction spending in

Iraq and Afghanistan, and original nursing home inspection reports

often can’t be accessed on the Web.

In addition, the required tools to help requesters, such as indexes

of information systems, are obsolete or poorly documented. And finally, a growing number of agencies are refusing to release inforVerDate 11-MAY-2000 13:05 Dec 10, 2010 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 U:\DOCS\61936.TXT KATIE PsN: KATIE
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mation in the requested data form, even though the 1996 amendments require agencies to make them available in the form requested when they exist that way.

Third, when Congress mandates transparency, agencies only

sometimes comply. Congress has enacted law to ensure release of

important records on a timely basis, but those laws are sometimes

twisted to do just the opposite, and I detail several examples of

those in my written testimony.

And finally, requesters don’t know where to turn when FOIAs

have stalled. Few agencies make the job of Chief FOIA Officer a

primary function and few requesters are aware of OGIS. Last year,

for example, a reporter requested of an agency all correspondence

regarding human trafficking. Several months later, he received a

letter with a cost estimate to reproduce 700 responsive documents,

but he could never tell anyone how to proceed. Numerous phone

calls and emails were never answered and his story eventually ran

without the information that might have been provided in those

documents. A phone call to OGIS might have helped, but the Office

can’t be expected to resolve every case.

Congress could do several things to help. First, it could clarify

the definitions of frequently requested records and ask agencies to

review FOIA logs at least once a year for classes of records that

should be proactively disclosed.

Second, Congress could also build transparency into new laws

and new computer systems. And third, Congress could encourage

agencies to proactively release information of interest to the public

such as agency correspondence, calendars, lists of political appointees, and grant audits.

Journalists expect that the needs for records and transparency

will sometimes conflict with other priorities such as personal privacy and national security, but I think most reporters would be

happy to disagree on those substantive matters if the Government

readily released common documents, reduced delays and offered a

more effective path to resolution.

Thanks for the opportunity to present these views on the state

of FOIA.

[The prepared statement of Ms. Cohen follows:]

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Mr. CLAY. Thank you so much, Ms. Cohen.

Ms. Rosenbaum.

STATEMENT OF ADINA H. ROSENBAUM

Ms. ROSENBAUM. Thank you, Mr. Chairman, Ranking Member

McHenry and members of the subcommittee for inviting me to testify today. I am an attorney at Public Citizen, a nonprofit consumer

advocacy organization, and director of Public Citizen’s Freedom of

Information Clearinghouse.

Since its inception, Public Citizen has worked to promote Government transparency. Through the Clearinghouse and our Public

Interest FOIA Clinic, we provide assistance to individuals and organizations seeking information under open Government laws. My

comments today are based primarily on trends in processing FOIA

requests that we have noticed in our own experience and through

conversations with FOIA requesters over the past year.

As has been noted already, from his first full day in office, President Obama has expressed a commitment to creating an unprecedented level of openness in Government and emphasized that a

presumption of disclosure should apply to FOIA. We applaud President Obama’s new policies in favor of transparency.

But the administration has often focused more on affirmative disclosure and tools for interaction between Government and the public than on FOIA itself, and I don’t want to downplay the importance of proactive disclosure of records and particularly the usefulness of making records available on agency Web sites.

At the same time, though, FOIA’s request and response process

plays an important role in ensuring that the public is informed

about the Government’s activities, and we have found FOIA processing to be inconsistent.

Although I have spoken to requesters who have had better experiences with FOIA in the past year than in previous years, I have

also spoken to many requesters who have faced serious problems

accessing records. And I want to focus today on four categories of

problems faced by requesters: persistent delays, communication

misunderstandings, problems due to interagency referrals, and

over-withholdings.

First, the problem that requesters mention to us the most is the

long amount of time it takes agencies to respond to requests. Although FOIA requires agencies to respond within 20 business days,

agencies often take months or even years to respond. Just yesterday, for example, I received a record in response to a FOIA request

I made in July 2006.

These sorts of delays both keep requesters from being able to use

the records as effectively as possible, but also engender mistrust in

the Government. Most requesters I talk to assume that a long

delay indicates that the agency is trying to hide something.

As Mr. Sobel mentioned, earlier this week, Senators Leahy and

Cornyn introduced the Faster FOIA Act, which would establish a

commission to study and make recommendations about methods to

reduce delays, and we support the establishment of such a commission.

Congress should also consider creating incentives for agencies to

improve response times, such as the loss of the right to claim that

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records are exempt under the deliberative process privilege if the

agency has not timely processed them.

Another problem we see is breakdowns in communication between requesters and agencies. Over the past year, we have seen

increased efforts by agencies to communicate with requesters,

which is a step in the right direction. Too often, though, requesters

in these conversations feel that they are being pressured into narrowing their requests. They get asked questions like, what is it you

really want, when they feel that they have already stated what

they really want. They want the records listed in their FOIA request.

We have also heard a number of stories about FOIA requests

being rejected based on technicalities and of organizations being

asked to provide a burdensome amount of details to justify their fee

waiver requests.

In addition, interagency referrals sometimes create problems.

When agencies have responsive records that originated with another agency, they generally refer those records to the other agency

for processing. From the FOIA requester perspective, these records

are essentially sent into a black hole.

For example, last June Public Citizen sent a request to the U.S.

Trade Representative, which released some records, but referred

others to the Federal Reserve and the Departments of Treasury,

Commerce, Transportation and State, some of which further transferred the records to sub-agencies. At each stage, the responsible

staff member and tracking number would change without Public

Citizen being kept up to date of those changes.

Requesters should be able to track a referred request and know

who in the new agency is responsible for the request. Agencies also

should be required to process and return referred records quickly

so as not to multiply delays. An interagency committee devoted to

referrals should be established to develop mechanisms that would

reduce delay and allow requesters to be able to follow their referred

requests.

Finally, problems persist even after agencies respond. Too often,

records are redacted or withheld when no exemption applies or

when no foreseeable harm would result from release. Continued

training and emphasis on the presumption of disclosure is needed

to combat these problems.

Further, targeted FOIA amendments would promote Government

transparency. For example, we believe that exemption five should

include a presumption that older records are not protected under

the deliberative process privilege. Targeted changes could make an

important difference in allowing the public to understand its Government’s activities.

Thank you very much, and I am happy to respond to questions.

[The prepared statement of Ms. Rosenbaum follows:]

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Mr. CLAY. Thank you very much, Ms. Rosenbaum.

Professor Cuillier, you are recognized.

STATEMENT OF DAVID CUILLIER

Mr. CUILLIER. Good afternoon, Chairman Clay, Ranking Member

McHenry and members of the subcommittee. I appreciate the opportunity to address you today. I think what you are doing here is

extremely important. And I would like to talk, if I may, a little

about how requesters view FOIA, developing cultures of openness,

and some ideas for maybe enhancing transparency.

First, the state of FOIA today. The past year has been refreshing, like everybody said: the President’s Executive order, the Holder memo, the Open Government Directive, the initial work of OGIS

has been outstanding, dispute resolution we hear today. That is

great.

However, like some of the others, I think the perception of requesters is that we are not quite there yet, and the administration

acknowledged this just a few days ago even. In my written testimony, I cited dozens of studies documenting the problems. We have

backlogs, delays, redactions that are extreme, exemptions applied

broadly, a variety of strategies used to skirt FOIA, such as the

state secrets privilege, Presidential Records Act, Privacy Act, Family Educational Rights and Privacy Act.

Most journalists, frankly, don’t use FOIA because of the frequent

delays and denials. And I keep asking, but I haven’t heard from

journalists that this changed much in the past year. Perhaps it

has, but our perception is that it hasn’t yet. If the President were

in my class, I would give him an A for effort, but probably a C for

execution.

However, I have to say it is unfair to expect immediate change.

These things take time. So that is where we come to agency culture. As a former journalist and as a researcher in freedom of information at the University of Arizona, I have found that accessing

records is often more about people than the law. If an agency embraces openness, then FOIA tends to work. If it embraces secrecy,

then FOIA doesn’t work.

It is this human factor that leads me to teach journalists the

interpersonal dynamics of accessing records. It led me to co-write

with Charles Davis the book, the Art of Access, because the problems with the FOIA process, requesters are forced to be adept at

what I call psychological warfare. It is a cat and mouse game. And

it shouldn’t be that way, but it is. And it really helps no one, not

requesters, not agencies, not taxpayers. And that is why I think it

is imperative to fix the laws and develop a culture of openness in

Government.

Changing people is a lot harder than changing laws, but it can

be done. It is a state of mind grounded in one’s psyche, and it can

be learned. So how do we do this? Well, there are a couple of different ways, and I am sure others have great ideas. But first, I

would think that we need harsher penalties for noncompliance. We

see this at the State level and the effectiveness it has. Some of the

most transparent States in this country, Florida, Texas and others,

have provisions for jail time or fines against agencies or individuals

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who act in bad faith, who knowingly break the law. I think we

need that in FOIA as well.

We need more assistance for requesters. We have this wonderful

new office, OGIS, but we can do more. We need more staffers for

OGIS, apparently, and I agree with them. It is unreasonable to expect an average citizen to take the time and money to sue the Government for information. Just figuring out what the information is

to ask for is a challenge.

We need online accountability. FOIA performance for all agencies

should be made clear in one place, perhaps on the new Open Government Dashboard. Quantifiable benchmarks should be set and

agencies graded, much like restaurant inspections or school standardized testing. When it comes to FOIA, I would like to know, is

an agency passing? Is it exceptional? Or is it failing?

We need more funding and rewards for agencies, carrots. It is

unfair to require agencies to be more transparent, but not provide

them the resources to do it. We need more staffing to reduce backlogs. We need prizes and monetary awards for doing a good job.

And finally, training of values. We need training of all Federal

employees, not just FOIA officers, on the fundamental principles of

open Government. There are States that do this, and I think it is

effective. I had to take this training once as a State employee, why

it matters, government accountability, economic innovation, an informed electorate, building public trust.

Too often, training is limited to FOIA officers and they are focused on the application of exemptions, how to keep things secret.

If we are going to have a culture of openness, then that means

truly internalizing the societal benefits of transparency.

So in conclusion, I am pleased with what we have seen this past

year so far as a starting point. There are still a lot of problems that

need to be fixed, but change takes time and if this administration

stays on track, I am hopeful this country can develop a strong

Freedom of Information Act and a lasting culture of openness.

Thank you, sir.

[The prepared statement of Mr. Cuillier follows:]

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Mr. CLAY. Thank you so much, Professor.

Mr. Fitton, you have 5 minutes.

STATEMENT OF TOM FITTON

Mr. FITTON. Thank you, Mr. Chairman, Mr. Vice Chairman, and

thank you for inviting me to this important hearing.

Essential to Judicial Watch’s anti-corruption watchdog mission is

the Freedom of Information Act. Judicial Watch uses this tool effectively to root out corruption. We have used it to root out corruption

in the Clinton administration and we took on the Bush administration’s penchant for improper secrecy.

We have nearly 16 years of experience in using FOIA to advance

the public interest, and we are perhaps the most active FOIA requester and litigator operating today.

The American people were promised a new era of transparency

by the Obama administration. Unfortunately, this promise has not

been kept. To be clear, the Obama administration is less transparent, in our experience, than the Bush administration. We have

well over 340 FOIA requests pending with the Obama administration, and we have filed over 20 FOIA lawsuits in Federal court

against this administration.

Administratively, agencies have put in place additional hurdles

and stonewalled even the most basic FOIA requests. The Bush administration was tough and tricky, but the Obama administration

is tougher and trickier. The Obama administration continues to

fight us tooth and nail in court. The Obama administration’s approach to FOIA is exactly the same as the Bush administration’s,

so one can imagine that we don’t have an easy time litigating these

issues in court against the Obama Justice Department.

Now, in my written testimony, I detail some of the legal wrangling we are involved in, but generally as a policy matter the

Obama administration has decided to wall off, for instance, the

Fannie and Freddie records now controlled, in our view, by the

Federal Housing Finance Administration. $400 billion in taxpayer

funds are now at least committed to these two entities, and yet

their argument is that we can’t have access to that. Unfortunately,

we are now disputing that in court and people can see details of

that in my written testimony.

And in addition to the problem of walling off FHFA’s control of

our Nation’s mortgage market through Fannie and Freddie from

public accountability, the Obama Treasury Department is a black

hole for basic information requests on the various Government bailouts.

So I can’t quite fathom how some can laud a new era of transparency while over $1 trillion in Government spending is shielded

from practical oversight and scrutiny by the American people.

And the subcommittee might also be interested to learn about

some of the background related to the release of the White House

visitor logs. Those logs are being released at the sole discretion of

the Obama White House. And they are making the argument, and

we are fighting with them in court, but the policy dispute is over

whether or not these logs are subject to the Freedom of Information

Act. And to echo David’s point earlier, the Bush administration

made this point in court recently at the end of its administration.

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The Obama administration has continued to argue they are not

subject to FOIA. So we are in a fight with them on that key issue

that they are using in terms of their public pronouncements on extolling their own openness.

So on two major transparency issues, and people can read the details of that in my written testimony. I know you don’t want to go

into the details of litigation. But two transparency issues relate to

policy. This a policy debate as well, on the bailouts and White

House access. The Obama administration has come down on the

side of secrecy.

Releasing high value data sets from Government bureaucracies

is meaningless in the face of key decisions to keep politically explosive material out of the public domain. So we give them an F on

transparency.

Let me end by saying the Founding Fathers understood why

transparency is important. Let me quote John Adams, and we can

all agree on John Adams, I think: ‘‘Liberty cannot be preserved

without a general knowledge among the people. They have a right,

an indisputable, inalienable and indefeasible divine right, to that

most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.’’

Thank you for your time, and I am happy to submit to questioning.

[The prepared statement of Mr. Fitton follows:]

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Mr. CLAY. Thank you so much for your testimony.

I guess this is a panel-wide question. Have any of the witnesses

noticed improvement in responses from agencies under the Obama

administration as compared to the Bush administration? For instance, Ms. Rosenbaum got a response from a 4-year old request,

and could it be because the culture has changed at the agency that

you requested it?

Ms. ROSENBAUM. There is still a long delay in that particular request within this administration. We have seen some improvements. We are seeing some of our requests acted on quicker than

we might have expected beforehand. As I said, we have seen some

improvements in communication where it is a little bit easier.

There will be more sort of interim responses letting people know

a little bit more about what is happening with their request while

it is in the process of being processed.

Mr. CLAY. OK, that is one that says they have seen improvement.

Mr. SOBEL. Mr. Chairman, I honestly have not really noticed a

great deal of difference at the agency level. But in fairness, I have

to say I tend to deal with the difficult agencies. I mean, where the

culture is a real problem, agencies like the FBI and various components of the Department of Homeland Security where the law enforcement culture in those agencies just tends to be resistant to the

concept of opening things up.

Mr. CLAY. So you still see stonewalling?

Mr. SOBEL. Yes, I do. And to underscore what I said earlier, I

think the point of contact where the administration’s stated policy

could have an impact is when agencies like that get sued, they

should be told by Justice Department lawyers, we are not going to

defend this. And that is how you send the message, and I don’t see

that happening. So I think we need to find ways where the rhetoric

can get translated into reality, and those are the things that I am

really looking for.

Mr. CLAY. That is a very good point.

Ms. Cohen, any difference in the administrations?

Ms. COHEN. I think what a lot of people are seeing is a lot more

politeness from the people that they are dealing with, kind of not

quite as much of a confrontational initial stance, but sadly, not a

whole lot of difference in the results in the end. So that is kind of

what we are hearing. It is agency by agency, though, and some appear to be making a much more serious effort than others.

Mr. CLAY. Thank you for that response.

Professor, any difference?

Mr. CUILLIER. Well, no. I haven’t heard any, but then most journalists don’t cover it any more. They are so fed up with it. So I am

doing a survey in a couple of months. I am asking 800 journalists

that exact question, so I will get back to you.

Mr. CLAY. Thank you.

Mr. Fitton.

Mr. FITTON. Obviously, I think they are a little bit worse. Believe

it or not, we are actually quite flexible working with agencies on

focusing and narrowing requests, but there is not too much difference. And at the legal level, that is where the rubber meets the

road and it is the same as the Bush administration as a problem.

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Mr. CLAY. So it is the same amount of suits, litigation.

Mr. FITTON. Well, the Government is doing, respectfully, a lot

more these days so we are asking a lot more questions. So as a result, we have a few more lawsuits.

But their position in the lawsuits are not only problematic in

terms of traditional FOIA, but the key provision of the new FOIA

law related to awarding attorney’s fees and costs as an incentive

to agencies to get the documents out. David as a lawyer may have

more insight on this than me. They are trying to read that out of

the law, practically speaking, saying that just because you file a

lawsuit doesn’t mean you should get costs if the documents come

out as a result.

So the lawyers are the problem. How is that for a summary response?

Mr. CLAY. Well, we better make sure we take care of the lawyers.

[Laughter.]

Mr. Sobel, let me ask you, there are those who say the administration has not done enough in the last year to improve the FOIA

process. Others say that after many years of Government secrecy,

it takes time to turn things around. Before I ask you about the

process itself, I would like to ask how important you think it has

been and will continue to be that the President has issued clear

and unambiguous guidance that the presumption of the administration is to disclose rather than to withhold?

Mr. SOBEL. I think it is important, but the question, as I indicated a couple of minutes ago, is how do you make that filter down

to the front lines where these decisions are being made by overburdened FOIA personnel every day. And I agree that incentives

and disincentives is an important concept.

One of the points I raise in my written testimony is that the

Civil Service performance evaluation process probably ought to be

taking into account performance with respect to transparency obligations. Agencies should think about or OPM should think about

making transparency work a critical element in job performance.

I think all of the incentives are to withhold. I mean, the average

employee feels like they can be disciplined for releasing something

improperly, but they don’t have the same concern about withholding something improperly. And I think we need to change that. So

it is very much at the level of the FOIA Office that the change

needs to occur.

Mr. CLAY. And under your evaluation system, do you think that

would curb the use of exemption three?

Mr. SOBEL. I think exemption three, talk about an agency by

agency proposition. I mean, exemption three really exemplifies

that, that every agency has their own exemption three statutes

that they either are permitted to use or are inclined to use. But I

certainly think with respect to some of the agencies that have access to most of those exemption three statutes, yes. I mean, more

of a sense of penalty improper withholding would go a long way.

Yes.

Mr. CLAY. Thank you for that response.

Mr. McHenry.

Mr. MCHENRY. Thank you, Mr. Chairman.

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Mr. Fitton, now, the chairman and I both serve on the Financial

Services Committee as well, and obviously we have an interest in

the GSEs and the Federal Home Loan Finance Agency, and the receivership that Fannie Mae and Freddie Mac are currently under.

In essence, they are in my view functioning as a Government agency.

You made a Freedom of Information request of documents from

FHFA. Now, coming to light that the Government basically took

over Fannie Mae and Freddie Mac and their hundreds of billions

worth of debt, what was their justification? Now, they rejected your

Freedom of Information request. Is that correct?

Mr. FITTON. That is right. They believe that these are not agency

records under FOIA and they cite their precedent and obviously we

cite our precedent back. But you know, from a practical non-legal

perspective, they seized control of these agencies. They control

their operations down to the greatest minor detail. They control the

appointment of the Board of Directors and all their communications. They have control of the records. They can search for them.

But they have obviously decided to wall them off.

That is a decision, in my view, that is not made lightly by the

administration. This is a significant issue and the decision to wall

Fannie and Freddie from FOIA scrutiny is the result of the Government taking it over. It is a decision that I suspect was not made

lightly and indicative of the administration’s position on a key

transparency issue.

Mr. MCHENRY. So they simply rejected it?

Mr. FITTON. That is right. No one who wants to ask anything

about Fannie and Freddie through the FHFA under the Freedom

of Information Act, it will be responded to under their view of the

law.

Mr. MCHENRY. Have other groups experienced this? Anybody

else in a similar situation with FHFA?

Now, so the justification is that they are not a Government agency. Correct?

Mr. FITTON. They are not a Government agency. They are a private corporation temporarily being held by the Government.

Mr. MCHENRY. Well, is this emblematic of your experience with

other agencies?

Mr. FITTON. Well, it raises an interesting issue with the Treasury Department’s running of General Motors. We haven’t gotten

necessarily into that fight specifically, I don’t believe legally, but if

the Government is running General Motors, if all General Motors,

some of General Motors’ operations’ documents, for instance their

hiring of lobbyists using taxpayer money, does that become subject

to FOIA?

On Treasury generally, they are terrible. They just ignore FOIAs.

They grant themselves extra time.

The Federal Reserve, a new area that everyone seems to be interested in these days. We are just asking for Ben Bernanke’s visitor logs. We are not getting anywhere on it. Our interest there is

obvious. There is a lot of money and power and sensitivity to the

use of that money in power, given the financial crisis. And walling

all of that off from effective disclosure and scrutiny, to me, is, that

to me is the story of FOIA under the Obama administration.

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Mr. MCHENRY. How many FOIA requests did Judicial Watch,

how many FOIA requests did you have in 2009?

Mr. FITTON. In 2009? Over 300.

Mr. MCHENRY. OK.

Ms. Rosenbaum, Public Citizen, how many FOIA requests did

you have in 2009?

Ms. ROSENBAUM. I actually don’t know the number of requests

that we have made.

Mr. MCHENRY. OK. All right.

Well, Mr. Sobel, you mentioned that certain agencies are just

consistently bad.

Mr. SOBEL. Yes, I think that is a fair characterization.

Mr. MCHENRY. Now, the sort of broader general question, is it

the political appointees or is it the agency? There has been a shift,

and thankfully the President said the right things. Unfortunately,

we haven’t seen implementation, and I think the panel in essence

agrees that we have seen maybe in terms of courtesy a little more

positive than the last administration, but in terms of results, it is

basically the same or in some cases worse.

What agencies, would you say it is the political appointees or the

agency culture?

Mr. SOBEL. Well, with respect to that question, I think an interesting example, and an agency that happens to be near the top of

my list in terms of bad agencies is the FBI. The FBI is an agency

where you would assume that political appointees don’t really play

that much of a role because you have Director Muller who really

is not a political person. I mean, he has now been there for a while.

He has a 10-year term.

I mean, if any agency you would assume is immune from political

influence, we would like to think it is the FBI, and that is an agency that has historically had the worst backlogs. I cite in my testimony the fact that in one of our cases, the FBI asked for a 6-year

stay in a court case to allow it to complete processing of a FOIA

request.

And then once they finally do get around to processing a request,

they tend to withhold to an extent that I don’t think it justified.

And again, in my written testimony, we cite a specific example of

material that was withheld by the FBI 3 years after that very fact

was revealed in a Department of Justice Inspector General report.

So I think that is an example where it is culture because I do

believe that the FBI, to a large extent, is immune to political

trends one way or another.

Mr. MCHENRY. My time has expired, but Ms. Cohen, Professor,

if you could touch on this as well?

Ms. COHEN. Yes, to me it is less agency by agency than it is kind

of unpredictable on what appears to requesters to sometimes seem

capricious. That if you can make the argument that it is in the

agency’s almost political interest to release something, you can get

some records released, where somebody who doesn’t make as good

an argument that it is in their interest will get the same records

denied.

And for reporters, David is right. Very few reporters will go

through the process. They would rather just get leaked documents

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at that point. So that is one effect of not having an effective one

is that people look for other avenues a way around it.

Mr. CUILLIER. Yes, I don’t have much to add. I think there are

so many factors involved with whether you get records or not that

it is hard to pinpoint one particular thing or one agency. But I

think the type of records you ask for is probably a major factor, and

there is research that shows that who you are affects whether you

will get it or not. Journalists and politically sensitive requesters

tend to not get things, or get delays, for example.

Mr. MCHENRY. Thank you, Mr. Chairman, and thank you all for

testifying.

Mr. CLAY. Thank you, Mr. McHenry.

Ms. Cohen, can you expand upon your suggestion that Congress

should build transparency into the oversight of new information

systems?

Ms. COHEN. Yes, I was a reporter in Florida in the 1990’s, and

at that time the State instituted, and I don’t know if it was a legal

institution or just a practice, that when new information systems,

new data bases were being designed, say, a new email system was

being implemented, or, say, a new system to catalog inspections,

that part of the certification of that system was that the public

parts of it could be made public, could be easily extracted, and that

it would not be mixed up with proprietary and private information,

and it really did make a big difference there.

Mr. CLAY. Thank you for that response.

Ms. Rosenbaum, in your written statement, you mention problems contacting FOIA public liaisons. Can you expand on this issue

and give us a sense of what you expect from public liaisons?

Ms. ROSENBAUM. We have found that sometimes agencies are

just very hard to get a hold of. I think the example I gave in my

testimony was of trying to contact a public liaison and finding that

he didn’t tend to be at his desk and didn’t have voice mail. So we

just called, and when I would call the phone would ring and ring,

and that was that.

So I think it is important that the public liaisons be available to

the requesters in order for them to have a sense of what is happening with their request and be able to have contact with the agencies about what is happening with those requests.

Mr. SOBEL. And Mr. Chairman, if I can just jump in on that.

Mr. CLAY. Sure.

Mr. SOBEL. I have had experiences where the phone number and

the name of the employee listed on an agency Web site just appears to be wrong, where you dial the phone number and you get

the voice mail for some other employee, and that is sort of the dead

end that you hit.

Mr. CLAY. Doesn’t sound like much priority is placed on that.

Mr. SOBEL. No, and as a litigator, what is frustrating is I will

usually make a very good faith effort to attempt to resolve an issue

before taking it to court. And often those efforts are frustrated just

by the inability to reach an adult in an agency to bring this matter

to their attention.

Mr. CLAY. Thank you.

Professor, what, in your opinion, is the single greatest point of

misunderstanding between agencies and requesters?

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Mr. CUILLIER. Well, I think often it is what the person is after.

There is a lot of disconnect. A person wants X records and an agency thinks it is something else. And then that creates a problem.

And the agency denies it outright, and then they start getting

confrontational. They start digging in.

And so I think that is where the human—we have a lot of problems with not just FOIA, but State public records, all that sort of

things, because of that. People can’t figure out what to ask for.

Sometimes an agency won’t help them figure out what to ask for.

And so we get into this cycle of fighting.

And so I like what I heard from Ms. Nisbet today about trying

to figure out ways to get agencies to help requesters figure out

what they are after. Unfortunately, I think sometimes when they

are after something the agency doesn’t want them to get, they help

them not find the record. It can be a problem.

Mr. CLAY. Do you believe that the process in terms of legislation,

regulation and policy is as good as it gets? And that requesters

need to rely on strategy to improve their chances?

Mr. CUILLIER. Well, right now they do. Right now, they have to

know a lot more than the law to get what they want. That is just

the reality. That is why we wrote our book because we saw so

many requesters running into problems.

They think they can just say, here’s the law; I would like to get

this record, please. And it doesn’t work that way. So I think it is

really important that we figure out a way to make this work.

Mr. CLAY. OK. Thank you for the response.

Representative McHenry.

Mr. MCHENRY. Thank you, Mr. Chairman.

Just very brief, but I would like everyone if you could just very

briefly, not elaborate, but what are the top line things we can do

in terms of policy, so that the public has more access rather than

less? And this is not one administration. It is not one agency. It

is the policy that we, here on the Hill, should legislate and ensure,

and the reason why we have these hearings is to make sure the

law as written is being followed. What kind of policy changes can

we make in order to open this up?

And we will just start with Mr. Fitton and just move on down

the line.

Mr. FITTON. I don’t have an exact piece of advice on this issue.

But the most abused exemption is the internal deliberative process

withholdings that are made, and figuring out when and how that

is appropriate, maybe legislating a way to allow requesters better

access to that and giving the agencies less discretion in the seemingly arbitrary way they withhold documents in that regard.

Mr. MCHENRY. OK. Thank you.

Mr. CUILLIER. Again, I would say penalties, and I would say

some carrots. And I would look at some of the best State laws out

there. There are some really good laws out there, and there are

some States doing some incredibly good things in this way. Perhaps

we can take a look at that. I think a lot of journalists, in particular,

much prefer their State law to FOIA.

Mr. MCHENRY. OK.

Ms. ROSENBAUM. The most recent FOIA amendments have tended to focus on process, which is very important because people need

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to actually be able to get responses and have their requests processed to get records. But I think that Congress should also consider

more substantive amendments to the FOIA exemptions themselves.

We think that Congress should include consideration of the public interest in disclosure in the exemptions, in more of the exemptions. That is not considered right now in determining whether

records are exempt under various of the exemptions.

Mr. MCHENRY. OK.

Ms. COHEN. I think that giving the same priority to disclosure

as we give to other priorities in Government throughout a lot of different laws, not just the FOIA law, would make a big difference.

And also somehow, and I don’t have a specific example of this, but

to change the power balance between the requester and the agency.

Right now, there is only one power there and that is the agencies,

then there is really nothing that a requester can do.

Mr. SOBEL. First, I would agree with Adina that we need to take

a look at the substance of the exemptions and build in a public interest component to a greater extent than is currently the case.

And second, and this is not a very satisfactory recommendation

because nobody wants another study commission, but I do think

that the Faster FOIA Act idea of finally examining in depth the

delay problem is really a necessary step. And if that had been done

several years ago when this idea first came up and actually passed

the Senate Judiciary Committee, we would be sitting here today

with some real information and some real recommendations. So I

think we finally do need to get that process started.

Mr. MCHENRY. OK. Thank you so much. This is very helpful because so much of what we talk about here is the problem, not the

solution. So just to pivot and give us some thought process, give us

food for thought on how to approach this.

And I certainly appreciate you all being here and the interests

that you are trying to carry out on behalf of the people.

Thank you.

Mr. CLAY. Thank you.

Let me also thank this panel and the previous panel for your

participation in this hearing that kind of highlights Sunshine

Week, and it is so important that we improve upon FOIA and how

the Federal Government interacts with the public, especially the

requester community. I think your testimony has been invaluable.

And without objection, this hearing is adjourned.

[Whereupon, at 4:37 p.m., the subcommittee was adjourned.]

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