U.S. GOVERNMENT PUBLISHING OFFICE

28–395 PDF WASHINGTON : 2018

S. HRG. 113–883 

OPEN GOVERNMENT AND FREEDOM 

OF INFORMATION: REINVIGORATING 

THE FREEDOM OF INFORMATION ACT 

FOR THE DIGITAL AGE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MARCH 11, 2014 

Serial No. J–113–52 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

MARCH 11, 2014, 10:20 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 70 

WITNESSES 

Witness List ............................................................................................................. 27 

Bennett, Amy, Assistant Director, OpenTheGovernment.org, Washington, DC 17 

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

Cuillier, David, Ph.D., Director and Associate Professor, The University of 

Arizona School of Journalism, and President, Society for Professional Journalists, on behalf of The Sunshine in Government Initiative, Tucson, Arizona 19 

prepared statement .......................................................................................... 54 

Metcalfe, Daniel J., Adjunct Professor of Law and Executive Director, Collaboration on Government Secrecy, American University Washington College 

of Law, Washington, DC ...................................................................................... 21 

prepared statement .......................................................................................... 62 

Nisbet, Miriam, Director, Office of Government Information Services, 

National Archives and Records Administration, Washington, DC .................. 6 

prepared statement .......................................................................................... 37 

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

of Justice, Washington, DC ................................................................................. 4 

prepared statement .......................................................................................... 28 

QUESTIONS 

Questions submitted to Prof. Daniel J. Metcalfe by Senator Grassley ............... 73 

Questions submitted to Miriam Nisbet by Senator Grassley ............................... 74 

Questions submitted to Miriam Nisbet by Senator Leahy ................................... 77 

Questions submitted to Melanie Ann Pustay by: 

Senator Cornyn ................................................................................................. 72 

Senator Grassley .............................................................................................. 75 

Senator Leahy ................................................................................................... 78 

ANSWERS 

Responses of Prof. Daniel J. Metcalfe to questions submitted by Senator Grassley 80 

Responses of Miriam Nisbet to questions submitted by Senator Grassley ......... 85 

Responses of Miriam Nisbet to questions submitted by Senator Leahy ............. 86 

Responses of Melanie Ann Pustay to questions submitted by: 

Senator Cornyn ................................................................................................. 102 

Senator Grassley .............................................................................................. 89 

Senator Leahy ................................................................................................... 96 

(1) 

OPEN GOVERNMENT AND FREEDOM 

OF INFORMATION: REINVIGORATING 

THE FREEDOM OF INFORMATION ACT 

FOR THE DIGITAL AGE 

TUESDAY, MARCH 11, 2014 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:20 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Franken, Blumenthal, and Grassley. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you all for being here. I apologize for 

being a few minutes late. Once or twice a year, the Chief Justice 

brings in what is called the Judicial Conference with the chief 

judges of all the circuits, as well as some others, for a meeting, and 

a number of us come and brief or answer questions. I was there 

in this capacity, and so was the Attorney General and others. I also 

had been tied up on the floor earlier and ran a little bit late. But 

I wanted to have this hearing, and I will stay here as long as I can, 

and then I think Senator Franken will take over the gavel. 

But we are going to talk about the Freedom of Information Act. 

All of you refer to it as ‘‘FOIA.’’ And as we stream what we do here, 

I will call the whole Freedom of Information Act, ‘‘FOIA,’’ from now 

on. But we also commemorate the annual celebration of openness 

in our democratic society called ‘‘Sunshine Week,’’ which will take 

place next week. I will be in Vermont talking about it in several 

places. 

For almost a half a century, the Freedom of Information Act has 

translated our American values of government openness and accountability into practice by guaranteeing the public’s right to get 

information. So I think it is time that we take stock of just where 

we are, what progress we have made during the last decade as we 

tried to improve FOIA. We will also examine proposals to reform 

FOIA to address new technologies that were not even imagined at 

the time it was written and the challenges that remain when citizens seek information about their Government. 

Five years after President Obama issued Presidential directives 

on FOIA and open government, we have seen some progress. Backlogs of FOIA requests are on the decline, a trend that started dur-
2 

ing his first term. Online tools such as Data.gov, FOIA.gov and the 

FOIA portal, and the Obama administration’s new FOIA IT Working Group have modernized it. It is a step in the right direction, 

but I think we all agree there is more that remains to be done, and 

I feel that much of the progress has come too slowly. 

A new study by the Center for Effective Government, which 

graded the responsiveness of the 15 Federal agencies that process 

the most FOIA requests, found that half of these agencies failed to 

earn a passing grade. Another impediment to the FOIA process is 

the growing use of exemptions to withhold information from the 

public. According to a 2013 Secrecy Report prepared by 

OpenTheGovernment.org, Federal agencies used FOIA Exemption 

5 to withhold information from the public more than 79,000 times 

in 2012—a 41-percent increase from the previous year. 

I might say parenthetically that if you start marking everything 

classified, nothing is classified. I have been in meetings where 

among the things that have been brought up and marked classified 

were the covers of a couple of news magazines. That is getting a 

little bit carried away. 

I am concerned that the growing trend toward relying upon 

FOIA exemptions to withhold large swaths of Government information is hindering the public’s right to know. It becomes too much 

of a temptation if you screw up in Government to just mark it ‘‘top 

secret.’’ That is why I have long supported adding a public interest 

balancing test to the FOIA statute so Federal agencies consider the 

public interest in the disclosure of information before issuing a 

FOIA exemption. 

And this is a bipartisan effort. Seven years ago, Senator Cornyn, 

a Republican from Texas, and I worked together to establish the 

Office of Government Information Services, OGIS. We wanted 

OGIS to mediate FOIA disputes and to make recommendations to 

Congress and to the President on how to improve the FOIA process. I am encouraged by the good work that OGIS is doing, but I 

worry the office does not have the sufficient independence, authority, but especially resources to fully carry out its work. The office 

is critical to keeping our Government open and accountable to the 

American people. So I will continue to work so they get the tools 

and the resources necessary. 

During both Democratic and Republican administrations, and 

both Democrats and Republicans as Chair of this Committee, this 

Committee has had a proud tradition of working in a bipartisan 

manner to protect the public’s right to know. Working together, we 

have enacted several bills to improve FOIA for all Americans. I 

value the strong partnerships that I have formed with Ranking 

Member Grassley and Senator Cornyn on open government matters. So I look forward to that continuing because it really makes 

no difference whether you have a Democrat or a Republican as 

President. The American public is served only if it knows what its 

Government is doing and why. And that is something that should 

unite—as it has united Senator Grassley and I and others—should 

unite us and keep us going. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator Grassley. 
3 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Mr. Chairman. I always enjoy 

this hearing. And from what you just said, let me emphasize that 

there is not any distance between you and me on this subject, and 

I hope that that broad-based political support will send a clear signal to everybody in the bureaucracy, not just these two people here, 

of the importance of the public’s information being public. 

This hearing provides us an opportunity to focus on how the Government handles the Freedom of Information Act. As I have said 

before, it has been my experience that every administration, 

whether Republican or Democrat, just what the Chairman said, 

has challenges in providing the degree of transparency desired by 

so many—a right of citizens to know and, more importantly, as I 

have said, public information ought to be public. 

Unfortunately, this administration, as administrations before, 

continues to fail to provide the transparency in this particular case, 

maybe a higher standard set by the President himself because of 

the statements he made of this being the most transparent administration in history. This is troubling, as we all were told that fact 

on January 21st, 1 day after he was sworn in as President the first 

term. We need to do better than the status quo. 

I expect that we will hear about some of the changes in technology that are taking place to make the FOIA process better. This 

is important, and improvements are, in fact, needed. But we also 

must remain focused on improving the way Government thinks 

about transparency and freedom of information. All of the changes 

to technology will be futile if there is not a change of attitude. 

On this point about change of attitude, at last year’s hearing I 

questioned what the Justice Department was doing to improve the 

way people think about transparency. I hope to hear today what 

has been done to change the so-called culture of obfuscation among 

freedom of information officials. The term ‘‘culture of obfuscation,’’ 

et cetera, is a quote. 

The Justice Department and its Office of Information Policy has 

a unique and special role with regard to FOIA. The Office of Information Policy can have a profound impact on FOIA. It can tackle 

head-on the governmentwide ‘‘culture of obfuscation’’ problems. I 

am concerned, though, that rather than lead in a positive way, this 

office has reacted in a way that is contrary to the President’s transparency promise. 

I am frustrated with the legal argument that the Justice Department and the Federal Election Commission made in a recent FOIA 

case. This is Citizens for Responsibility and Ethics in Washington 

v. FEC. The Justice Department made an argument that, in the 

view of many, undermined FOIA. 

Fortunately, the D.C. Circuit Court of Appeals, in a unanimous 

decision, rejected the administration’s argument. The D.C. Circuit 

said the Government’s position would create a ‘‘Catch–22’’ situation, leaving requesters in limbo for months or years. That result 

is not what Congress or the law envisions. I am glad the court got 

this one right, but it is a shame that it even had to consider the 

question. 
4 

What message does the Justice Department’s argument send to 

other agencies, meaning the argument in that case? I fear this ‘‘do 

as I say, not as I do’’ approach emboldens the agencies to craft 

legal maneuvers that undermine Freedom of Information compliance. That is what the Federal Election Commission did, and the 

Justice Department was right there to help them in the court. 

Given the Justice Department’s leadership role with respect to 

FOIA, that is disappointing, if not downright alarming, considering 

what the purposes of FOIA is all about. If Justice makes this kind 

of argument, why should anyone be shocked about the lack of 

transparency claims against the Government? As a Senator, I have 

had my own challenges in obtaining information not only from this 

administration but a lot of administrations since I have been in the 

Senate. And, again, I only hold this administration to a higher 

standard because of the standard set by themselves that on January 21, 2009, they were going to be the most transparent in the 

history of our country. If it is this difficult for a Senator, I can only 

imagine how much more difficult and frustrating it might be for a 

private citizen. 

I will note that recently the House of Representatives unanimously passed bipartisan FOIA legislation. I think that is a real 

accomplishment in the politicized world that Washington is today. 

I understand, Mr. Chairman, that our staffs are reviewing this legislation and hearing from those in the transparency community. 

Overall, the reception seems to be positive, but there are some 

questions that have been raised regarding, for example, the technology used in handling requests. We will continue to examine this 

issue and others, but here is a bill that we should take seriously 

and examine closely. 

There is a lot of room for improvement, and I look forward to 

asking our witnesses today about some of these concerns I have 

raised before—or that I have raised today. 

Thank you. 

Chairman LEAHY. And our staffs have been looking at it, and it 

is an area where I believe we can find common ground and should 

move forward with it. 

Senator GRASSLEY. Good. 

Chairman LEAHY. Melanie Pustay, who is the Director of the Office of Information Policy at the Department of Justice, has statutory responsibility for directing agency compliance with the Freedom of Information Act. Before becoming the office’s Director, she 

served for 8 years as Deputy Director, so a great deal of experience 

there. 

Ms. Pustay, please go ahead. 

STATEMENT OF MELANIE ANN PUSTAY, DIRECTOR, OFFICE OF 

INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE, 

WASHINGTON, DC 

Ms. PUSTAY. Good morning, Chairman Leahy, Ranking Member 

Grassley, and Members of the Committee. I am pleased to be here 

today to discuss the Department of Justice’s ongoing efforts to assist agencies in improving their administration of the FOIA. Increasing use of technology to improve the public’s access to information has been a key part of our work. 
5 

Over the past 5 years, we have seen agencies embrace technology 

in a wide variety of ways. Agencies recognize the benefits of IT and 

are using ever more sophisticated technology to improve access to 

information. 

One area that we have found technology to be particularly beneficial is the use of tools and applications that assist with the core 

tasks of processing FOIA requests, such as technology that assists 

in the search and review of records. Automating those functions 

has the potential to improve timeliness in responding to requests. 

OIP has hosted seminars and given presentations to our FOIA IT 

Working Group to enhance awareness of the possibilities that these 

technologies hold. Last year, 68 agencies reported using some type 

of advanced technology to increase their efficiency. 

Now, in addition, agencies are using technology in ways to improve the public’s ability to interact with the agency. Making more 

information available online is yet another way that agencies are 

increasing transparency. 

Given that proactive disclosures can satisfy public demand for information without the need to ever file a FOIA request, OIP has 

focused on this topic in both our written guidance and in our training for agencies. And agencies have embraced proactive disclosures 

by posting a wide variety of material that is of high public interest, 

and they have made their websites more useful to the public. 

Finally, FOIA.gov continues to revolutionize the way in which 

FOIA data is itself made available to the public. The explanatory 

videos that we have embedded in that site received more than 2.5 

million visitors. 

So as you can see, FOIA is indeed adapting to the Digital Age, 

yet there is still more that we can do. In the next 2 years, the administration has committed to five initiatives that are all designed 

to modernize the FOIA. As part of the administration’s second 

Open Government National Action Plan, we have committed to improving the customer service experience by establishing a consolidated online FOIA portal that will not only allow for the making 

of requests to all agencies from a single website but will also include additional tools to help improve the customer experience. 

Second, to streamline and simplify the request-making process, 

OIP will be leading an interagency team in developing a common 

FOIA regulation that is applicable to all agencies but still retains 

flexibility for agency-specific requirements. 

Third, as agencies have been working to improve their FOIA 

practices these past 5 years, OIP is organizing a series of targeted 

Best Practices Workshops where agencies can share lessons 

learned in implementing the Attorney General’s FOIA Guidelines. 

Fourth, to ensure that employees have a proper understanding of 

the FOIA, OIP is creating a suite of e-learning FOIA training resources which will target discrete groups of employees, from the 

newly arrived intern to the senior executive. 

And last, OIP will be supporting and participating in a FOIA Advisory Committee that is designed to foster dialogue between agencies and the requester community. 

Now, the Department of Justice will also be continuing our work 

in encouraging and overseeing compliance with the law. Last year, 

for example, we issued guidance addressing a number of ways that 
6 

agencies can improve their communication with requesters. We 

continue to conduct assessments of agency progress using a wide 

variety of milestones, including those that target technology use. 

As agency implementation of the Attorney General FOIA Guidelines has matured, OIP has been continually refining those milestones. We have engaged with the open government community in 

this effort, and we greatly appreciate the ideas and suggestions we 

have gotten from them. 

This past Fiscal Year marks another year in which the Government received record high numbers of FOIA requests. In response, 

agencies were able to increase the total number of requests processed. Out of the 99 agencies subject to the FOIA, 73 reported having a backlog of 100 requests or less, with 29 reporting no backlog 

at all. 

But given the importance of reducing significant agency backlogs, 

OIP required those agencies to provide a plan for reducing their 

backlog in the year ahead. 

So, in closing, the Department of Justice looks forward to working together with the Committee on matters pertaining to government-wide FOIA administration. We have accomplished a lot over 

these last 5 years, but OIP will continue to work diligently to help 

agencies achieve even greater transparency in the years ahead. Increasing use of technology will be a key part of those efforts. 

Thank you. 

[The prepared statement of Ms. Pustay appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

And before we go to questions, we want to hear from Miriam 

Nisbet. She is the founding Director of the Office of Government 

Information Services at the National Archives and Records Administration. Before assuming that, she served as Director of the Information Society Division for the United Nations Educational, Scientific, and Cultural Organization in Paris. So I guess I should say, 

‘‘Bienvenue.’’ 

Ms. NISBET. Merci. 

Chairman LEAHY. De rien. Please go ahead. 

STATEMENT OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT INFORMATION SERVICES, NATIONAL ARCHIVES 

AND RECORDS ADMINISTRATION, WASHINGTON, DC 

Ms. NISBET. Bonjour, Mr. Chairman, Ranking Member Grassley, 

Members of the Committee. Thank you for the opportunity to appear again before you leading up to Sunshine Week. 

Since last year’s Sunshine Week, we at OGIS have been working 

hard to carry out our mission to review agencies’ policies, procedures, and compliance, and to provide mediation services to resolve 

FOIA disputes. In fact, the OGIS mediation caseload was up 40 

percent in Fiscal Year 2013, which is a testament to the innovative 

approach of resolving FOIA disputes that Congress created through 

OGIS. 

We have also worked closely with Government colleagues to contribute to five ambitious efforts to modernize FOIA through the administration’s second Open Government National Action Plan. All 
7 

of these commitments embrace using technology in some way to 

improve FOIA processes. 

For example, the administration committed to launching a consolidated portal to give requesters a single site across Government 

to file their requests. Ms. Pustay talked about that also. 

I would note that the existing and expanded FOIAonline system—in which our parent agency, the National Archives, is a partner and which was the subject of an OGIS recommendation in 

2012—will certainly inform that process. 

Additionally, NARA will support the new FOIA Modernization 

Advisory Committee, made up of Government and non-Government 

FOIA experts who will recommend improvements, starting with 

meetings this spring—if spring ever comes. 

More specifically to the work of OGIS, the FOIA, as you know, 

directs my office to recommend policy changes to Congress and the 

President to improve the FOIA process. Last year, we recommended four ways to do that, and our efforts with all four recommendations continue today. 

We are making progress on two 2013 recommendations that we 

intend to carry forward: one is examining FOIA fees, the other reviewing the process for requesting immigration-related records. 

A third recommendation also long term involves working with 

agencies to implement dispute resolution for FOIA disputes. 

OGIS has begun working with several agencies to identify ways 

to prevent and resolve disputes as well as avoid litigation. Our 

final recommendation last year was to encourage agencies to share 

our reminder that FOIA is everyone’s responsibility, which we were 

very glad to see some agencies do. 

Beyond those and other efforts OGIS is continuing to carry out, 

there are additional low- or no-cost ways to address technological 

issues and improve the FOIA process generally. At any given time, 

agencies across the Government are working to update or purchase 

new information technology infrastructure. We recommend that 

when procuring new technology, upgrading existing technology, or 

even creating a new large agency database, program officers consult with their records managers and FOIA professionals to best 

determine how the records will be managed, how the agency might 

conduct FOIA searches, and ideally how the agency might 

proactively disclose the information or data. This collaboration 

should extend to contracted information technology services so that 

when a FOIA request is received, neither agencies nor requesters 

are burdened with out-of-contract costs. 

Additionally, while technology can theoretically make it easier to 

maintain information, it can sometimes pose a challenge in retrieving information in response to a FOIA request. FOIA professionals 

must be able to rely upon their more technologically savvy colleagues to help unleash information held in databases or other systems. 

There are also low-tech, low-cost, or no-cost ways that can make 

a difference to improve customer service. For example, I have sent 

a letter to the President asking the White House to issue a memorandum to general counsels and chief FOIA officers that focuses on 

exemplary customer service for a better FOIA process, with par-
8 

ticular attention to the importance of appropriate dispute resolution through FOIA public liaisons and through working with OGIS. 

Another way we can improve customer satisfaction is by working 

with agencies to ensure they provide information about the estimated date of completion for FOIA requests. This issue remains a 

challenge to some agencies, and OGIS will work closely with OIP 

on that. 

I appreciate the opportunity to appear before this Committee, 

and I thank you for the support you have shown to the Office of 

Government Information Services. 

[The prepared statement of Ms. Nisbet appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you very much for that. 

Let me ask a couple questions. Ms. Pustay, this year marks, as 

I said, the fifth anniversary of the Attorney General’s FOIA Guidelines. I commend the guidelines. As I said before, they restore the 

presumption of openness. But I worry that they get undermined by 

the growing use of FOIA exemptions. I referenced this in my opening statement, the recent report by OpenTheGovernment.org. It 

said that Federal agencies used FOIA Exemption 5 to withhold information more than 79,000 times in 2012, a 41-percent increase. 

Why are they relying so extensively on Exemption 5? And those 

are the numbers for 2012. What happened in 2013? Is your microphone on? Thank you. 

Ms. PUSTAY. There are a couple of things I want to point out regarding the usefulness of looking at a statistic such as that. 

First of all, the use of exemptions is going to necessarily fluctuate from year to year. We have had years in the past where the 

number of citations to Exemption 5 went down. Sometimes it goes 

up. So it does fluctuate. 

That is also going to be very much driven by the types of requests that agencies receive. Agencies obviously have no control 

over what types of records are asked for. 

Third, the use of Exemption 5 this past year, over 85 percent of 

the uses of Exemption 5 are attributed to two agencies, and last 

year, when we looked at the use of Exemption 5, one of those agencies overwhelmingly had been processing records that were subject 

to protection under the attorney work product privilege, which does 

not—— 

Chairman LEAHY. What were the two agencies? 

Ms. PUSTAY. DHS and EEOC. Those are the two agencies that 

have used Exemption 5 the most. But both of those agencies use 

Exemption 5 to protect attorney work product and attorney-client 

information, which is not as susceptible to discretionary release, 

like the deliberative process privilege. 

So these are all reasons why we would—and, last, another important thing to keep in mind is that an agency might be processing 

a record and releasing everything on a page other than one sentence. But if they use Exemption 5 to protect one sentence, they 

are going to be citing Exemption 5, and that will count as the use 

of the exemption. So the number of citations does not tell you how 

much is being released or how much is being withheld. 

And for all those reasons, what we have asked agencies to do in 

their Chief FOIA Officer Reports is give examples of discretionary 
9 

releases so that there is a public accountability for actual increases 

in releases. 

Chairman LEAHY. But the Attorney General’s Guidelines say 

they will not defend an agency’s decision to deny a FOIA request 

unless it would cause a foreseeable harm. 

Ms. PUSTAY. Correct. 

Chairman LEAHY. But only three of the 15 agencies that process 

the most FOIA requests have promulgated regulations to adopt 

this. Is there foot dragging going on here? Or is this just—— 

Ms. PUSTAY. No; the agencies across the Government have embraced the Attorney General’s FOIA Guidelines, as are demonstrated each and every year through the detailed Chief FOIA Officer Reports that we ask every agency to provide. Regulations 

were not required to implement the Attorney General’s FOIA 

Guidelines, and we have a very robust accountability for their implementation through the Chief FOIA Officer Reports, which detail 

a wide variety of steps that agencies are taking specifically to advance the presumption of openness, but also to use technology and 

to improve efficiency. They are all addressed in the Chief FOIA Officer Reports. 

Chairman LEAHY. Let me go to Director Nisbet. You mentioned 

if spring ever comes. I want you to know that in Vermont, we will 

have 4 or 5 inches of snow on a day, and usually the news will say 

we are going to have a ‘‘dusting’’ tomorrow, no more than 4 of 5 

inches. They did announce that tomorrow it will be a moderate to 

heavier snow, 18 to 20 inches. And it is conceivable schools could 

open an hour late. 

[Laughter.] 

Chairman LEAHY. We could open on time if we had anywhere 

near as much equipment as they have here in this area to clear 

snow, but we do not. So we do the best we can. 

To be serious—I was serious about that, but to be serious, we are 

considering a legislative proposal to make OGIS more independent 

by allowing OGIS to make recommendations on improving the 

FOIA process and make those recommendations directly to Congress. Do you support that proposal? 

Ms. NISBET. Senator Leahy, the administration has not yet taken 

a position on H.R. 1211, and I am not able to comment. I will say 

I really always appreciate the attention to OGIS, and I will be interested to see what happens. 

Chairman LEAHY. I understand the reason you have to be cautious, but OGIS made nine recommendations to Congress—five in 

2012, four in 2013. But it seemed that they were delayed for so 

long because of either OMB or the Department of Justice looking 

at it. So I hope that we can reach a point where the recommendations can be made directly to us. 

We also had a Government Accountability Office study that 

found last year that you do not have adequate staffing and resources to perform the dual mission of reviewing agency FOIA compliance and also providing mediation services, which can be very 

essential to getting something done. So I will ask you this question: 

Does OGIS have adequate staff and resources to carry out its 

work? 
10 

Ms. NISBET. Mr. Chairman, let me answer that in a couple of 

ways. A number of commenters, I think even before OGIS opened 

its doors, noted that with the broad mission that we have, with the 

dual mission that we have to review and to provide mediation services, either one of those missions would be quite a challenge for the 

office that we have. We have tried to do as best we can with that. 

We have been challenged at times, and as I mentioned, our caseload in mediation is up significantly from the year before. 

With that having been said, we are looking at ways to take the 

GAO recommendations into effect, and I am pleased to tell you that 

our agency has approved hiring three additional staff members for 

OGIS in large part to work on the review part of our mission, and 

we are very much looking forward to getting those people on board. 

Chairman LEAHY. Well, I am not restrained by OMB or anything 

else, but I will say I believe you need more staff to carry this out, 

because I think—again, I do not care whether you have a Republican or Democratic administration. To be able to move quickly and 

effectively on FOIA requests, knowing that some are here for the 

sake of doing it, but most are very reasonable, to move quickly and 

thoroughly on them is extremely important to democracy in this 

country. 

Senator Grassley had to step out, and he suggested we go next 

to Senator Blumenthal. And I will say, as I have said before, I 

think we are lucky that Senator Blumenthal is here. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you 

very much. And I appreciate your having this hearing, which I 

think is profoundly important, and I recognize your leadership in 

the area of open government and freedom of information. And I appreciate this panel being here today. 

Ms. Pustay, you used the word earlier ‘‘robust’’ to refer to the initiatives going forward. You know, I think it is hard to square the 

term ‘‘robust’’ with the frustration and sometimes anger that people feel, we hear as their representatives. And I wonder what additional steps or what kinds of recommendations you would make to 

this Committee, whether it is the legislation that has been proposed or other measures, to make this process work better and convince people that their Government is, in fact, open and complying 

with the law. 

Ms. PUSTAY. Well, respectfully I disagree with the premise in 

that I think that the agencies are robustly—I do not have a problem using the word that they are robustly implementing the law. 

This is not to say that there are not further improvements that can 

be made. But we have seen across the Government record high 

numbers of incoming FOIA requests, and yet agencies processed 

more FOIA requests last year than ever before. In the past 5 years, 

we have agencies releasing records, in full or in part, in over 90 

percent of cases. We have many, many examples of agencies putting records up on their websites to help make information available to the public without the need for a FOIA request. 

So we have seen a lot of concrete steps that agencies have taken 

to improve access to information. But we do think that there are 

further steps that we can take, and one of those—I detailed five of 

them, but just even to focus a little bit on one of the five that I 
11 

think has a lot of potential to help both agencies and requesters 

is our project to create a uniform or common FOIA regulation. 

The idea there would be to streamline and standardize some of 

the core procedures, procedural parts of administering the FOIA, 

making them the same across agencies to the extent we can. That 

I think would have a direct day-to-day impact on the common 

FOIA requester who would find it much easier to know there is the 

same time period for filing an appeal, for example, at every single 

one of the 99 agencies. 

Senator BLUMENTHAL. And why does that not exist now, as you 

put it, standardized and common FOIA regulations—— 

Ms. PUSTAY. Right. Yes, this—it is an idea—it is a new idea to 

have a common one. Right now we have 99 agencies with 99 sets 

of FOIA regulations. So one of our initiatives is to explore the legal 

feasibility, first and foremost, of doing that, and then working together as an interagency team and also getting comments from the 

public about the content of those. 

Senator BLUMENTHAL. And who is responsible for that project? 

Ms. PUSTAY. So my office is leading that project, but we are having input from across the Government, the requester community, 

certainly my friend Miriam at OGIS. We are all going to be part 

of a team to do this, to have a thoughtful study and analysis of how 

best to do it. 

Senator BLUMENTHAL. What is your timeline for actually implementing a standardized common regulation? 

Ms. PUSTAY. We are going to start the process this spring, so we 

have been talking a lot about spring in this hearing, so very soon 

we are going to start the process of actually having meetings and 

delving into the different mechanics of doing so. But it is a 1- or 

2-year project. 

Senator BLUMENTHAL. Well, I would accept, with all due respect, 

the use of the word ‘‘robust’’ if that standard regulation were already in place, similarly with improving the agencies’ internal processes. 

Ms. PUSTAY. Right. 

Senator BLUMENTHAL. Who is in charge of that project? 

Ms. PUSTAY. Well, so that internal—OIP is leading an effort to 

create opportunities for agencies to share their best practices. 

Across the Government we have many examples of agencies doing 

some really terrific things, for example, in technology or taking 

steps that have really helped them reduce their backlogs. There is 

a wide variety of issues connected with FOIA administration, and 

with 99 agencies we have stars that we can identify for every one 

of those topics. 

And so the idea there is to have a group of agencies that have 

done very well on a particular topic share their experiences, their 

tips, their strategies for success with everyone else. Then we will 

create written documentation of those strategies, make those available on line. 

The whole idea is to have some synergy and have agencies be 

able to learn from one another. 

Senator BLUMENTHAL. And I very much applaud and welcome 

those kinds of initiatives. My suggestion is that the sooner that you 

implement them, because the only real obstacle to implementing 
12 

them is the resources that you have and the organizational skills 

of the people trying to achieve them, the more likely it is you will 

avoid legislation that will tell you and give you dates about what 

to do. 

Ms. PUSTAY. Right. We have already announced on our website 

the start of these series of meetings. We have lots of agencies that 

have already indicated to us that they are really excited and interested to serve on panels. We have got more suggestions for topics 

than we have got months in the year, so I think this will be a really—I do not want to keep using the word ‘‘robust,’’ but I think this 

will be a very energetic project. Let me say it that way. 

Senator BLUMENTHAL. Well, you questioned the premise of my 

question, which is that the procedures were not robust. But you did 

not question the premise, the more important premise that the 

public is frustrated and unhappy with the pace of responses and 

the amount of information provided. I think when you mention 

freedom of information to the ordinary citizen—and, by the way, it 

is true of State government as well as Federal—there is a common 

reaction for anybody who has any experience with it that it does 

not function well. 

Ms. PUSTAY. In addition to processing more requests across the 

Government this past year, the agencies improved processing time. 

So I guess I do have a response to that characterization. We have 

been able to reduce the processing time for simple-track FOIA requests. 

There is no doubt, though, that there is an incredible interest by 

the public in getting access to information, and we have over 

700,000 requests filed each year. So really we are fortunate, I 

think, in the United States that the public really embraces the use 

of the Freedom of Information Act. But to help agencies increase 

their capacity to deal with that high volume of requests, that is 

where we think technology really holds a lot of great potential, and 

particularly the more sophisticated technology tools that help with 

processing. To the extent manual processes can be changed over 

into automated processes, the actual time per request can be reduced, that to me has the most potential to increase timeliness 

across the board. 

Senator BLUMENTHAL. And I would second your comment about 

that we should welcome the public’s interest in what the Government does. At a time when we kind of moan about the cynicism 

and distrust of Government, obviously some of these requests for 

information are motivated by that feeling of doubt or questioning 

what Government is doing. But at the same time, a lot of it is simple curiosity and interest, which we should welcome and support 

and aid and abet. 

Ms. PUSTAY. Right. 

Senator BLUMENTHAL. So the better and quicker that we try to 

provide information, the better democracy works, which is just kind 

of a less articulate statement than many provide about the reason 

that we have freedom of information laws. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Well, thank you, Senator. You have been a 

strong supporter of the Freedom of Information Act. 
13 

And as I said at the beginning, Senator Grassley has joined with 

us on a number of the pieces of legislation to make FOIA even 

more effective, and I yield to Senator Grassley. 

Senator GRASSLEY. Thank you. 

There are not a lot of Members here today, but I hope you will 

get a view from all of us in a bipartisan way that we are very serious about making this FOIA work and that withholding information is not justified. 

Director Pustay, you heard me mention in my opening statement 

about the CREW case. Last year you could not comment on it because I suppose at that time it was pending. Now that the case has 

been decided, I would like to ask you some questions about the Office of Information Policy role in that case. 

The bottom line—and then I will follow it up with specifics— 

whether or not you had a seat at the table so that you or your office was able to provide insight or assistance in those handling the 

case. Were you involved in preparing a brief or, if not going that 

far, in crafting an argument? Or were you consulted at all? 

Ms. PUSTAY. Senator Grassley, because you are still asking me 

questions connected with litigation, even though it is not ongoing, 

it is not appropriate for me to go behind the scenes and talk about 

it. I would refer you to the briefs that we filed in that litigation 

for the statement, the position that the Government took. 

But what I can tell you is that—— 

Senator GRASSLEY. Before you go on, what is ongoing when the 

D.C. Circuit has made a decision? 

Ms. PUSTAY. No, I did not say—I know it is not ongoing anymore, 

but it is not appropriate for me to go behind the scenes to talk 

about litigation procedures or strategies. The position that the Government took is in our briefs that are obviously publicly available. 

Senator GRASSLEY. Yes, but since you are such a key player in 

this whole thing, if they do not seek your advice, we ought to know 

that. Why wouldn’t they seek your advice? If they did not, you can 

just say no, they did not seek your advice. 

Ms. PUSTAY. As I said, it is just not appropriate for me to talk 

about behind-the-scenes discussions that go on at the Department 

of Justice in connection with litigation. 

Senator GRASSLEY. Well, I am not a lawyer here, but can I ask 

the lawyers on the staff whether that is an appropriate thing once 

a decision has been made? 

Ms. PUSTAY. The attorney work product privilege extends beyond 

the conclusion of the litigation. I can tell you that. 

Senator GRASSLEY. Okay. Go ahead and tell me whatever you 

want to tell me. I do not think it will be of much value, but go 

ahead. 

Ms. PUSTAY. What I thought might be helpful to you, Senator 

Grassley, is to know that we have done a number of steps, taken 

a number of steps since the Attorney General’s FOIA Guidelines 

were issued to help agencies improve their experience with—to 

help agencies and requesters interact more productively together. 

And, in particular, we have issued now over the course of the past 

several years two guidance articles specifically on the importance 

of good communication with requesters. And in doing so, we have 

taken into account and gotten a lot of suggestions from the re-
14 

quester community through requester roundtables and just regular 

outreach that I have with the open government groups. And I have 

taken that information and put it into guidance to agencies, all designed to help improve the way agencies interact with requesters. 

I think that is a very good example of how my office, through our 

guidance function, is improving the process. 

Senator GRASSLEY. I want to ask you another question. Last year 

I pointed out my concerns regarding increased litigation on FOIA. 

Specifically, we had this 2012 study finding that there were more 

court complaints from requesters to get documents under the Freedom of Information Act during President Obama’s first term as 

compared to Bush’s second term. It would seem to me that the Government is falling short of achieving unprecedented transparency. 

This problem highlights questions surrounding use of the foreseeable harm standard. Attorney General Holder has instructed agencies to apply this standard in litigation and agency decisionmaking. 

Doing so encourages discretionary disclosures wherever possible. 

So my question: During this administration has the Justice Department ever applied the foreseeable harm standard and decided 

not to defend an agency in a Freedom of Information Act lawsuit? 

Ms. PUSTAY. The Department of Justice, there have been—yes. 

The answer to your question is yes. Through the review process 

that our litigators go through with the agencies when a FOIA lawsuit is filed, there have definitely been situations where information was released as a result of applying the Attorney General’s 

Guidelines, and examples of those are actually contained in published court opinions. 

Senator GRASSLEY. Okay. Maybe you can give us—because the 

next question, I was going to ask you to provide a list of those 

cases. You might just give us the citations so we can get to them. 

Ms. PUSTAY. Certainly. I will be happy to do that. 

Senator GRASSLEY. Okay. 

[The information referred to appears as a submission for the 

record.] 

Senator GRASSLEY. Then I am going to go to Ms. Nisbet. Your 

testimony notes that the administration’s goal of simplifying the 

process for requesters and the agency professionals, specifically improving the online process for making and tracking freedom of information requests. I know that the National Archives and other 

agencies participate in FOIAonline portal, so I would like to hear 

from you about what we should consider when we examine this 

matter. So this question: Given that agencies vary in size and operation, how can a single online portal be created that avoids a onesize-fits-all approach? And on this point, has a failure to accommodate the differences between agencies caused any agency to terminate its use of FOIAonline? 

Before you answer, I understand that the Treasury Department 

no longer uses FOIAonline portal, so I think it is helpful that we 

carefully consider how to establish online systems that are being 

utilized by multiple agencies of different sizes. 

Can you answer that for me? 

Ms. NISBET. Yes, Senator Grassley. I hope I can answer all of 

those questions. 
15 

FOIAonline launched October 1, 2012, so it has been operating 

for about a year and a half. There are currently seven agencies 

that are partners in it. The National Archives and Records Administration is one, and we would certainly be an example of one of 

the small agencies. We are quite small compared to some of the 

others—Department of Commerce, Customs and Border Protection 

has recently joined, and the Department of the Navy joined just 

this February, so just barely more than a month ago. And the goal 

is to have a shared service. It is to accommodate both small agencies and large agencies, and we have not had—we, the partnership 

of FOIAonline, have not discovered that there has been an issue 

doing that. In other words, whether a small agency or a large agency, the system seems to be working quite well. We have heard good 

feedback from requesters, and we think it is going to be a good 

model for looking at either continuing to expand it, which we hope 

is going to happen, or to the next version that comes along. 

Treasury did belong for about a year. It was, in fact, creating its 

own system, but it was not up and running at the time that 

FOIAonline got up and running, and so Treasury joined during 

such time as it was able to take advantage of that multiagency portal until it was ready to launch its own expanded FOIA request 

system. 

Senator GRASSLEY. I have one more question. I am going to ask 

you to answer in writing. 

Mr. Chairman, I would like to ask Ms. Nisbet to take a message 

back to the Archivist. I am continuing to look closely at the National Archives Inspector General being kept on administrative 

leave for over 17 months. That is almost $200,000 of taxpayers’ 

money that has been wasted while we are waiting to resolve problems there. I think it severely harms the credibility of the National 

Archives and needs to be resolved. I would appreciate it if you 

would tell him that. 

Ms. NISBET. Yes, sir, I will. 

Senator GRASSLEY. Thank you. 

[The information referred to appears as a submission for the 

record.] 

Senator GRASSLEY. Thanks to both of you for answering my questions. 

Senator FRANKEN [presiding]. Thank you, Senator Grassley. 

Director Pustay, thank you for testifying this morning. I am 

sorry I got here late. 

The Center for Effective Government just came out with a report 

grading the 15 agencies that receive by far the most FOIA requests, over 90 percent of all information requests that the Federal 

Government receives. None of the 15 agencies received an A and 

7 got an F. 

I am particularly concerned about the long delays that people 

must undergo when they wait for records, notably including requests from groups that are seeking information to make sure that 

Federal contractors are complying with important labor laws. It 

seems like reform is necessary. 

What are some of the biggest problems that agencies face as they 

work to comply with FOIA? And what can we do to resolve those 

problems? 
16 

Ms. PUSTAY. The primary reasons that agencies give for having 

backlogs are the increases in the number of requests coming in, 

and as I have said, for the past 5 years we have had a steadily 

growing number of requests for information coming into the Government, so people—there are more requests to handle. And although many agencies are able to increase the number of requests 

they process to meet that incoming demand, the second thing that 

has been happening is that the requests are more complex than 

they were before. And I think in some ways, as agencies post more 

information online, what comes in as a request then tends to be a 

more complicated matter. 

So putting those two things together, in my opinion the best way 

or one of the best ways we would have to really actually tackle that 

is the topic of this very hearing—technology. I am very hopeful 

that the more advanced, sophisticated technology tools that can actually help agencies search for records and duplicate records and 

sort records, all the things that many times are done manually, if 

they can be automated to increase timeliness, that in turn will 

allow the agencies to get back to the requesters in a faster way. 

So that to me is the best approach that we have to that issue. 

Senator FRANKEN. Well, how long will that take to implement? 

Ms. PUSTAY. As I said in my opening statement, last year 68 

agencies reported using advanced technology tools. So it has been— 

when you look back just a few years in FOIA administration, when 

we were using much more basic technology, there have been real 

leaps and bounds forward. And agencies obviously really embrace 

and appreciate the use of these more sophisticated technology tools. 

They are also always looking for efficiencies. 

One of the focuses of the Attorney General’s FOIA Guidelines is 

to ask agencies every year to report on what are they doing to increase their efficiencies. Every agency is going to have different 

reasons for delays or different reasons where—different choke 

points in their process. And looking every year at efficiencies and 

finding ways to make your process more efficient and more smooth 

is another key aspect of what we have been doing under the Attorney General guidelines. And those are improvements that have 

been being made so far for 5 years under the guidelines and that 

we will continue to encourage going forward. 

Senator FRANKEN. Well, if half the agencies are getting an F and, 

as you said, most of the agencies seem to be using this advanced 

technology, I think there is something systemically wrong here. 

When you came to testify before the Committee last year, we 

talked about specific agencies and specifically the Department of 

Justice working to update their FOIA regulations to be consistent 

with the Open Government Act, which was passed 6 years ago now 

and the Attorney General’s March 2009 memo setting out the administration’s policy on FOIA. 

At the time you said the Department was still working on its 

own regulations, which it hoped would serve as a model for other 

agencies. This model for other agencies, why is the Department 

still not done with it? And what is the status of these regulations? 

Ms. PUSTAY. I can report that the regulations are now undergoing a regulatory review process that is—— 
17 

Senator FRANKEN. The regulations are undergoing a regulatory 

review process. Okay. 

Ms. PUSTAY. Yes, yes. It is required by Executive Order 12866, 

to really give you the details of it. So there is a specific process. 

We are at the tail end of that process, and it is now in this interagency review stage. So we really are optimistic that they will be 

ready soon. 

I do want to, though, re-emphasize to you—I know we talked 

about this before—the Attorney General’s Guidelines did not require implementing regulations. We have been working steadily 

and very aggressively since they were issued in 2009 to implement 

those guidelines, not just at DOJ but across the Government. No 

regulatory changes were needed. We have required agencies to report on their progress in implementing the guidelines through their 

Chief FOIA Officer Reports. So we have a very full record of not 

just what DOJ has been doing for the past 5 years under the guidelines but what all agencies have been doing to increase transparency. 

Senator FRANKEN. Okay. Well, hopefully the next report you will 

be getting better grades, but thank you both for your testimony. 

You are excused, and I would like to invite the witnesses on our 

second panel to come forward. 

[Pause.] 

Senator FRANKEN. Well, first of all, welcome and thank you for 

taking time from your busy schedules to be with us today. 

Our first witness is Amy Bennett, the assistant director at 

OpenTheGovernment.org. OpenTheGovernment.org is a coalition of 

80-plus organizations seeking to make the Federal Government 

more open and accountable. 

Our next witness is Dr. David Cuillier, director and associate 

professor of the University of Arizona School of Journalism. Dr. 

Cuillier is also the president of the Society of Professional Journalists, the largest organization of journalists in the United States. 

Our final witness is Daniel J. Metcalfe. He is the adjunct professor and executive director of the Collaboration on Government 

Secrecy at the Washington College of Law at American University. 

And he is the former Director of the Department of Justice Office 

of Information and Privacy. 

I would like to thank you all for joining us. I would like to give 

you each about 5 minutes to make your opening statements. Your 

complete written testimonies will be included in the record. Ms. 

Bennett, please go ahead. 

STATEMENT OF AMY BENNETT, ASSISTANT DIRECTOR, 

OPENTHEGOVERNMENT.ORG, WASHINGTON, DC 

Ms. BENNETT. Thank you, Chairman Leahy, Ranking Member 

Grassley, and Members of the Committee, for the opportunity to 

speak today about reinvigorating the Freedom of Information 

Act—— 

Senator FRANKEN. I think your mic might not be on. 

Ms. BENNETT. There we go. So thank you for the opportunity to 

speak about reinvigorating the Freedom of Information Act and for 

your unwavering commitment to protecting and strengthening the 

public’s right to know. My name is Amy Bennett, and I am the as-
18 

sistant director of OpenTheGovernment.org, a coalition of more 

than 80 organizations dedicated to openness and accountability. 

Currently the FOIA is anything but an efficient tool and effective 

tool that the public can use to get timely access to Government 

records. Members of the public must contend with delays, mindboggling technical barriers, and a tradition of bureaucratic resistance to disclosure because agency officials believe information in 

agency records belongs to the agency, not the people. 

There is no doubt that technology has been extremely useful in 

speeding FOIA processing while also making it easier for the public 

to use and re-use Government information. 

Technology is not the entire answer, however, and we hope that 

the Committee will approve amendments to the FOIA addressing 

two of the issues discussed below and in my written testimony. 

Foremost among these, the open government community would 

like to see Congress put tighter boundaries around the Government’s overuse of FOIA’s Exemption 5 or, as many requesters like 

to refer to it, the ‘‘We don’t want to give it to you’’ exemption. Exemption 5 is intended to protect the Government’s deliberative 

process, among other things, and was intended to have—as are all 

FOIA Exemptions—narrow application. Over time, Federal agencies have expanded the scope of Exemption 5 to the point that it 

covers practically anything that is not a final version of a document. In one recent egregious example, the Central Intelligence 

Agency denied a request from the National Security Archive for a 

copy of the CIA’s internal history of the 1961 Bay of Pigs disaster. 

The request was denied despite the fact that the draft is connected 

to no policy decision by the CIA and it is related to events that occurred more than 50 years ago. 

Exemption 5 has also recently been invoked to flatly deny the 

public access to opinions by the Office of Legal Counsel. In recent 

years, we have seen the Government rely on these opinions to authorize a number of programs that go well beyond the plain reading of the law. 

Secret interpretations of the law prevent the public from having 

fully informed debates about Government’s policies and erode the 

public’s trust in the executive branch and in its decisions. 

In terms of needed reforms to Exemption 5, we can draw two lessons from these examples. One, Exemption 5 needs a public interest balancing test. If the Government were not convinced that the 

requested documents would advance the public interest, a requester would still have the opportunity to ask a court to independently weigh the Government’s needs in invoking the privilege 

against the needs of the requester. Two, there needs to be a time 

limit. Currently, a President’s records are only protected from release for 12 years after he leaves office. We should not accord more 

secrecy to agency business than we accord the President of the 

United States. 

The next critical issue relates to the Office of Government Information Services. The open government community strongly supports OGIS, and we appreciate this Committee’s leadership in creating the office. You will not be surprised, however, when I tell you 

OGIS continues to struggle to meet its dual roles as FOIA mediator 
19 

and as the office charged with reviewing agency FOIA compliance 

in recommending changes to Congress and the President. 

The first limitation faced by OGIS should be abundantly clear to 

this Committee thanks to Senator Grassley’s sharp questioning 

during last year’s FOIA oversight hearing. It should not take a 

threat by a Senator to drive down to the Office of Management and 

Budget to make sure that OGIS’ recommendations are delivered in 

a timely fashion. OGIS needs direct reporting authority so it can 

give you and the President opinions and recommendations based on 

the problems that they see. 

The second limitation is the age-old problem of resources. Right 

now the office consists of a staff of seven. That is seven people to 

help each agency FOIA office and the hundreds of thousands of 

FOIA requesters. They need new resources to help promote and 

support the office’s work. We believe that Congress should approve 

at least two new positions—a Director of Enforcement and a Director of Operations—to further strengthen OGIS’ ability to carry out 

its mission. 

The final limitation currently faced by OGIS that I will discuss 

today is its lack of authority to compel agencies to participate in 

the mediation process. Currently, OGIS and a requester that seeks 

OGIS’ assistance must rely on the good will of an agency involved 

in a dispute. For OGIS to serve all requesters who seek mediation 

service, Congress should require agencies to cooperate with OGIS 

and to provide information if requested. 

OpenTheGovernment.org and our partners are eager to work 

with you to draft a strong bill that makes FOIA work better for the 

public. In addition to the other issues discussed in my written testimony, I am submitting a much longer list of possible reforms that 

the open government community would like to see enacted. 

We also think there are several good ideas in the recently passed 

House bill, and included with my testimony is a letter signed by 

more than 25 organizations endorsing that bill and calling attention to particularly good provisions. 

Thank you for the opportunity to speak about this critical issue, 

and I look forward to answering any of your questions. 

[The prepared statement of Ms. Bennett appears as a submission 

for the record.] 

Senator FRANKEN. Thank you, Ms. Bennett. 

Dr. Cuillier. 

STATEMENT OF DAVID CUILLIER, PH.D., DIRECTOR AND ASSOCIATE PROFESSOR, THE UNIVERSITY OF ARIZONA SCHOOL 

OF JOURNALISM, AND PRESIDENT, SOCIETY FOR PROFESSIONAL JOURNALISTS, ON BEHALF OF THE SUNSHINE IN 

GOVERNMENT INITIATIVE, TUCSON, ARIZONA 

Professor CUILLIER. Thank you, Senator Franken. 

I want to thank you for the opportunity to testify today on behalf 

of the Society of Professional Journalists and the Sunshine in Government Initiative. As you know, we are passionate about access to 

Government information. FOIA helps journalists reveal corruption, 

expose problems in society, empower citizens. Recently, journalists 

have used FOIA to expose dangers of crime aboard cruise ships. 

They have used FOIA to discover conflicts of interest among Fed-
20 

eral Reserve Bank presidents. They have used FOIA to show how 

drug companies influence what appears on warning labels. FOIA 

makes a difference. It saves lives. 

But I am here today to say that FOIA is terribly, terribly broken, 

and it needs more than just reinvigoration. It really needs resuscitation. You all have worked hard to improve FOIA—the 2007 

Open Government Act, creation of OGIs—and for that we thank 

you. All great. But on the ground today, people’s real access to information is actually more and more restricted than ever. For example, this year the U.S. dropped 13 spots on the world ranking 

of press freedom, down to 46th place behind such countries as Romania, El Salvador, and Botswana. When you compare FOIA laws 

around the world, the statutes among the 90 or so countries that 

have them, the U.S. now ranks—and get this—44th. We are nearly 

in the second half in FOIA statute strength in the world. We have 

a weaker FOIA law than Uganda, Kyrgyzstan, Mexico, and Russia. 

Well, this trend is supported by other recent research. The Associated Press found that use of exemptions have increased 22 percent from 2011 to 2012. A study out of Penn State showed that 

agencies have used privacy exemptions to deny records more often 

under the Obama administration than the Bush administration. In 

surveys and anecdotally, journalists report increased delays, excessive fees, and agencies frankly gaming the system. Journalists are 

angry, they are livid, and I have never seen them as angry as they 

are now. 

You may recall, for example, that chemical contamination of 

drinking water a few months ago in West Virginia affecting 30,000 

residents. There was a reporter down there, Ken Ward, Jr. He has 

been stonewalled by the EPA and CDC. He requested records regarding health risks to pregnant women, but last week the CDC 

denied his petition for expedited review. They told him there was 

no urgent need to inform the public about the matter. 

Another reporter told me last week about a data request he initiated a couple years ago with Immigration and Customs Enforcement. After resistance and delays, Immigration referred the matter 

to OGIS for mediation. But then, after more delay, they decided not 

to go through mediation. Then they said too much time had passed 

and the reporter could not appeal anymore, so case closed. Now the 

reporter has to submit another request and start all over. It is that 

kind of behavior that we see that is causing a lot of problems. 

Agencies are getting more sophisticated in denying, delaying, and 

derailing requests, using FOIA as a tool of secrecy not of openness. 

So we can reverse this trend, but it is going to take significant action, such as: 

Number one, we probably should codify the presumption of openness. Let us enshrine into law that records should be freely available to the public unless disclosure would cause a specific, foreseeable, and identifiable harm. 

Number two, definitely, as we have heard here, strengthen 

OGIS. It needs more staff, it needs more independence, it needs 

more authority. OGIS should have a Chief FOIA Officers Council 

to recommend changes. OGIS should have enforcement powers. 

Some States have created enforcement mechanisms. Even Mexico 

has. So why not the U.S. Government? Really. 
21 

Number three, streamline the process. It is good to hear work is 

underway in a single online portal for receiving and tracking requests. Great. Harness the Internet, save money, time, frustration. 

I think we can all agree to that. 

But more important, number four, far more important than technology, gizmos, doodads, and gee-gaws is reigning in the statutory 

exemptions. That is primarily the most important thing we can do, 

because exemptions are being used today to end-run FOIA, crippling the law. And over the years, we appreciate pushback on exemptions, most recently with the farm bill. But we need to narrow 

the application, particularly with b(3). We need sunsets. We need 

a public interest balancing test, like Ms. Bennett said. And we 

need to require exemptions go through the Judiciary Committee for 

review. 

Of course, there are many other ways we can make beneficial 

changes to FOIA, and I know my colleagues next to me will provide 

more ideas. But I think the final thought I would like to leave you 

with is this: We are undergoing a climate change in this Nation 

with our transparency, and unless we take action now, I think we 

can forecast a future shrouded by cloudiness, darkness, and secrecy. 

I thank you for the opportunity to testify, and I look forward to 

answering your questions. Thank you. 

[The prepared statement of Prof. Cuillier appears as a submission for the record.] 

Senator FRANKEN. Thank you, Doctor. 

Professor Metcalfe. 

STATEMENT OF DANIEL J. METCALFE, ADJUNCT PROFESSOR 

OF LAW, AND EXECUTIVE DIRECTOR, COLLABORATION 

ON GOVERNMENT SECRECY, AMERICAN UNIVERSITY 

WASHINGTON COLLEGE OF LAW, WASHINGTON, DC 

Professor METCALFE. Good morning, Mr. Chairman and Members 

of the Committee. As someone who has worked with the Freedom 

of Information Act now for more than 35 years, I am pleased to be 

here this morning to provide an academic perspective on the Act 

and its governmentwide administration. 

My own views today are rooted in my work at American University’s Washington College of Law in recent years, where I teach 

courses in Government information law and direct the Collaboration on Government Secrecy, or CGS. 

In addition to maintaining an extensive website as an academic 

resource for all who are interested in Government secrecy and 

transparency (as two sides of the same coin), CGS has conducted 

an extensive series of day-long programs on the subject, with particularly heavy focus on the FOIA and, most recently, on the 

Obama administration’s implementation of it. Next week, we will 

hold our 24th such academic program—our annual celebration of 

Freedom of Information Day—and I am pleased to note that this 

Committee’s Chairman has twice participated in them. 

This academic perspective is also informed by decades of experience in leading the component of the Department of Justice, then 

the Office of Information and Privacy, now called the Office of Information Policy, that discharges the Attorney General’s responsi-
22 

bility to guide all agencies of the executive branch on the complexities of the FOIA’s administration. 

I know firsthand of the challenges involved in encouraging proper compliance with the Act, including new policy conformity by all 

agencies. Simply put, I have ‘‘been there, done that,’’ through several Presidential administrations, time and again. 

So it is through that lens that I view the many ways in which 

the openness-in-government community has been disappointed, 

greatly disappointed, by the surprising inadequacies of the Obama 

administration’s implementation of new FOIA policy—especially 

the key standard of ‘‘foreseeable harm’’—during what has now been 

these past 5 years. This began with the Holder FOIA Memorandum 

itself. Contrary to all expectations, and despite the precedent established by Attorney General Janet Reno, the Holder FOIA Memorandum did not by its terms apply its new ‘‘foreseeable harm’’ 

standard to all pending litigation cases—where it could have had 

an immediate, highly consequential impact. Rather, it contained a 

series of lawyerly hedges that appear to have effectively insulated 

pending cases from it. 

As one of the speakers at a CGS FOIA Community Conference 

put it, the FOIA requester community is still waiting to see a list 

of any litigation cases in which the ‘‘foreseeable harm’’ standard 

has been applied to yield greater disclosure. And after all these 

years now, notwithstanding what you heard this morning, there is 

a strong suspicion that there are few or perhaps even no such 

cases. 

Thus, the best possible opportunity to press for full adoption and 

use of this standard throughout the executive branch, in a concrete, 

exemplary fashion, has been lost. 

Perhaps I should note parenthetically here that the bipartisan 

FOIA amendment bill passed by the House 2 weeks ago, H.R. 1211, 

that was mentioned by Senator Grassley, contains a provision that 

would codify the ‘‘foreseeable harm’’ standard as a matter of law. 

Neither did the Holder FOIA Memorandum or its initial implementation guidance take the expected step of directing agencies to 

reduce their backlogs of pending FOIA cases. That is something 

that I address at great length in my written statement, and I will 

just in the interest of time skip over that now. 

But that should be a matter of concern for more than one reason: 

The awkward fact that the Department of Justice’s own FOIA 

backlog has been allowed to worsen over the past 3 years is bad 

enough for its own FOIA requesters. But when the lead Government agency for the FOIA fails so badly to reduce its own backlog, 

it makes it much harder for it to press other agencies to dutifully 

comply. And this ‘‘do as I say, not as I do’’ problem is exacerbated 

by the fact that the Department’s high-visibility leadership offices 

saw their own numbers of pending FOIA requests increase, rather 

than decrease, over the same period, by an aggregate figure of 3.95 

percent. This makes it impossible to lead by example. 

Turning to the FOIA’s exemptions, I will mention that the one 

that continues to cry out for immediate attention is Exemption 2. 

That is because of the Supreme Court decision that was issued 3 

years ago that basically eviscerated Exemption 2, leaving a lot of 
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sensitive information within the Government without an exemption 

that applies. 

I think it is fair to say that there is no reasonable question that 

remedial legislation is needed. And as Senator Grassley suggested 

in a question 2 years ago, it is irresponsible for the executive 

branch not to have proposed an amendment of Exemption 2 since 

that time. 

In sum, there certainly is much reason to look askance at the implementation of new FOIA policy over the past 5 years, to put it 

mildly. And this relatively brief recitation here today does not even 

take the time to consider in depth other large deficiencies, such as 

the glaring fact that most Federal agencies (especially, and again 

inexplicably, the Department of Justice) have not updated their 

vital FOIA regulations for many, many years now, even though required to do so, put aside the Holder Memorandum in 2009, by the 

2007 FOIA Amendments. 

Nor does it include the fact that as found in an academic study 

conducted by CGS, less than half of the Exemption 3 statutes used 

by agencies actually qualify under that exemption. 

In conclusion, I surely appreciate the Committee’s efforts today 

as in the past to, in the words of today’s hearing title, ‘‘reinvigorate 

the FOIA for the Digital Age.’’ But I daresay that what now appears to be needed—much to nearly everyone’s great disappointment and surprise—is sustained attention of a serious, remedial 

nature. 

Thank you for the opportunity to testify today, and I look forward to answering your questions. 

[The prepared statement of Prof. Metcalfe appears as a submission for the record.] 

Senator FRANKEN. Thank you, to all of you. Thank you, Professor 

Metcalfe. 

I will start with Ms. Bennett. You have heard the Government’s 

testimony today. Do you agree with their assessment of agency 

compliance with FOIA? 

Ms. BENNETT. I would certainly disagree that there have been robust efforts to implement the FOIA and that things are going particularly well. My organization believes that the Department of 

Justice, when they issue their annual report cards, generally act 

more as the cheerleader for how agencies are doing. And I think 

that to make agencies really pay attention to processing FOIA the 

way that they should be and to begin to really make a difference 

for requesters, we need to start calling agencies out on what they 

are doing wrong. So we hope that the Department of Justice takes 

a more fulsome look at not just where things are going well but 

where things are going poorly. 

Senator FRANKEN. Well, let me ask you that. Where are things 

going poorly? And what are your priority areas for reform? 

Ms. BENNETT. Sure. I think certainly the use of Exemption 5, as 

I talked about in my testimony, is a problem that we have seen 

over and over again. I know that the Department of Justice said 

that you cannot really use that statistic because it depends on 

what has been requested. But they certainly use that statistic 

when it is in their favor. 
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So we think that it is telling, and it is important, especially if 

you are looking at it over time, comparing year to year. So putting 

some tighter boundaries around how that exemption is used is definitely one of our number one priorities. 

Senator FRANKEN. Okay. Thank you. 

Dr. Cuillier, we know that FOIA has for over 40 years been instrumental to the press and to its role in our democracy. By the 

same token, we know that the FOIA system remains far from perfect. In your opinion, what are the most pressing problems that 

representatives of the news media face in navigating the FOIA system? 

Professor CUILLIER. Exemptions, hands down. It is agencies figuring out how to avoid giving out information they do not want out. 

And usually when journalists are requesting information, it is to 

find something that perhaps an agency does not want the public to 

know. So they will figure out any way to game the system, and 

that is huge frustrations in addition to delays and delays and 

delays, which is essentially denial to a journalist. And that is what 

is happening today. It is not even just FOIA. We are talking about 

a big trend in all forms of information control, excessive PIO controls at the Federal agencies, State and local government. It is everywhere. And this is a trend that has been going on for 40 years. 

The research supports it, the body of evidence. There may be folks 

who say otherwise, but it is just not supported overall, big term. 

I sound like a climate change scientist from the 1980s, but I am 

telling you, something is amiss. And unless we do push back 

against it, it is going to be pretty bad here. 

Senator FRANKEN. Professor Metcalfe, in your testimony you 

talked about the exemptions. Do you agree with the other two witnesses? 

Professor METCALFE. I certainly do agree that there are serious 

problems. If you wanted to have a list just to focus, in priority fashion, I would suggest six things in total: 

One, that there needs to be focus on the implementation of the 

foreseeable harm standard, which, by the way, is a very specific, 

concrete thing. That is how we implemented it in the Clinton administration, not with some more amorphous term such as ‘‘presumption of openness,’’ which does not mean that much to a FOIA 

analyst in the trenches. 

Second, backlog reduction, which I discussed in great detail in 

my written testimony. The Department of Justice’s backlog has increased. The Open Government Directive in December 2009 mandated all agencies with a significant backlog to reduce their backlogs by 10 percent per year since then. That has not happened governmentwide. There has been an increase. It has not happened 

within the Department of Justice in particular. There has been an 

increase. It has not happened in the three top leadership offices of 

the Department: AG, Deputy, and Associate’s office. There has been 

an increase. 

Third, Exemption 2. I do not think there is any reasonable dispute that remedial legislation is needed there, and as I say in my 

written testimony, it is utterly unfathomable to me why that has 

not happened. I am not casting aspersions on the work of the Committee because the tradition, certainly the one that I followed for 
25 

more than 25 years in leading that office, was that the executive 

branch, Justice, and OMB took the initiative in proposing legislation. But it has not happened. No one knows why. 

Fourth, regulations. As I mentioned earlier, regulations may not 

be legally required to implement the Holder Memorandum, but 

when we issued the one that I wrote for Janet Reno in October 

1993, we codified, so to speak, that standard in our regulations, 

and other agencies did as well. That is good policy; it is good practice to do so. It is inexplicable why that has not happened. 

Fifth, Exemption 3. As I indicated in my written testimony, there 

is a strong potential for one or the other committee on the Hill, this 

Committee or the counterpart committee on the House, to look at 

the academic groundwork we have done at my secrecy center because we have found that barely half of the more than 300 Exemption 3 statutes reported as used by Federal agencies actually qualify as Exemption 3 statutes when you look at them carefully. 

And, sixth, something you have already discussed, which is 

OGIS, and I know that you are very focused on that as well. 

Senator FRANKEN. Well, thank you all, and I apologize but I have 

to go to a vote. So we are going to have to close the hearing. I want 

to thank all of you. I want to thank the Chairman and the Ranking 

Member and, again, each of you. 

We will hold the record open for 1 week for submission of questions for the witnesses and other materials. 

This hearing is adjourned. Thank you. 

[Whereupon, at 11:43 a.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 

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