U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

44–767 PDF 2008

IMPLEMENTING FOIA—DOES THE BUSH ADMINISTRATION’S EXECUTIVE ORDER IMPROVE PROCESSING?

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

FINANCE, AND ACCOUNTABILITY

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JULY 26, 2006

Serial No. 109–257

Printed for the use of the Committee on Government Reform

(

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

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

BRIAN P. BILBRAY, California

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, FINANCE, AND ACCOUNTABILITY

TODD RUSSELL PLATTS, Pennsylvania, Chairman

VIRGINIA FOXX, North Carolina

TOM DAVIS, Virginia

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

EDOLPHUS TOWNS, New York

MAJOR R. OWENS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

EX OFFICIO

HENRY A. WAXMAN, CALIFORNIA

MIKE HETTINGER, Staff Director

TABETHA MUELLER, Professional Staff Member

ERIN PHILLIPS, Clerk

ADAM BORDES, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on July 26, 2006 ............................................................................... 1

Statement of:

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

John C. Cornyn, a U.S. Senator from the State of Texas; and Hon.

Brad Sherman, a Representative in Congress from the State of California .................................................................................................................. 5

Cornyn, Hon. John C. ............................................................................... 14

Leahy, Hon. Patrick .................................................................................. 5

Sherman, Hon. Brad ................................................................................. 28

Metcalfe, Dan, Director, Office of Information and Privacy, U.S. Department of Justice; and Linda Koontz, Director, Information Management

Issues, Government Accountability Office .................................................. 34

Koontz, Linda ............................................................................................ 46

Metcalfe, Dan ............................................................................................. 34

Rush, Tonda, public policy director, National Newspaper Association; and

Patrice McDermott, director, OpenTheGovernment.org ............................ 129

McDermott, Patrice ................................................................................... 156

Rush, Tonda ............................................................................................... 129

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

Cornyn, Hon. John C., a U.S. Senator from the State of Texas, prepared

statement of ................................................................................................... 17

Koontz, Linda, Director, Information Management Issues, Government

Accountability Office, prepared statement of ............................................. 48

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

statement of ................................................................................................... 8

McDermott, Patrice, director, OpenTheGovernment.org, prepared statement of ........................................................................................................... 159

Metcalfe, Dan, Director, Office of Information and Privacy, U.S. Department of Justice, prepared statement of ....................................................... 37

Rush, Tonda, public policy director, National Newspaper Association, prepared statement of ........................................................................................ 132

Sherman, Hon. Brad, a Representative in Congress from the State of

California, prepared statement of ................................................................ 30

(1)

IMPLEMENTING FOIA—DOES THE BUSH ADMINISTRATION’S EXECUTIVE ORDER IMPROVE PROCESSING?

WEDNESDAY, JULY 26, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

FINANCE, AND ACCOUNTABILITY,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

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

2247, Rayburn House Office Building, Hon. Todd R. Platts (chairman of the committee) presiding.

Present: Representative Platts, Towns, Waxman, Gutknecht,

Maloney, and Duncan.

Also present: Representative Sanders.

Staff present: Mike Hettinger, staff director; Tabetha Mueller,

professional staff member; Dave Rebich, detailee; Erin Phillips,

clerk; Brad Hoffer, intern; Adam Bordes and Anna Laitin, minority

professional staff members; Earley Green, minority chief clerk;

Jean Gosa, minority assistant clerk.

Mr. PLATTS. A quorum being present, this hearing of the Government Reform Subcommittee on Government Management, Finance,

and Accountability will come to order.

The Freedom of Information Act [FOIA], was signed into law 40

years ago this month in July 1966. Enacted after 11 years of debate, FOIA established a statutory right of public access to executive branch information. FOIA provides that any person has a right

to obtain Federal agency records. Originally, the act included nine

categories of information protected from disclosures, and Congress

has added additional exceptions over time.

Balancing the need for open Government with the need to protect

information vital to National Security and personal privacy is a

constant struggle. Federal departments and agencies are operating

in the post-9/11 information age and face 21st century security, information management, and resource challenges. As we seek to

achieve this balance, we must remember the words of Thomas Jefferson who said, ‘‘Information is the currency of democracy,’’ for it

is an essential tool to ensure that the citizens of this Nation have

access to information in the way Jefferson envisioned.

Last May, this subcommittee held the first hearing in the House

of Representatives on FOIA implementation in over 5 years. Today

serves as an important followup to that hearing. In response to legislative proposals introduced last year in the House and Senate as

2

well as the oversight conducted by this committee, President issued

Executive Order 13392, entitled Improving Agency Disclosure of Information, on December 14, 2005.

This document seeks to improve the overall processing of FOIA

requests, creating a more citizen-centered and results-oriented approach to information policy. Specifically, the Executive order requires agencies to develop FOIA improvement plans, designate

chief FOIA officers, and establish in-house FOIA requester centers.

The results of the initial phase of the order’s implementation were

reported to the Attorney General and the Office of Management

and Budget on June 14, 2006.

This hearing will give the subcommittee members an opportunity

to hear from key members who have introduced FOIA-related legislation as well as the Department of Justice on progress made implementing the Executive order and the Government Accountability

Office which has reviewed the initial FOIA improvement plans. Finally, the subcommittee will also hear from FOIA requestors on

their views of how the Executive order will improve FOIA processing and access to information.

We have three panels of distinguished witnesses. On our first

panel, we are especially delighted to have with us three individuals

who have really led the charge here when it comes to improving

our FOIA process: the Honorable Patrick Leahy, U.S. Senator from

Vermont and ranking member of the Senate Judiciary Committee;

the Honorable John Cornyn, U.S. Senator from Texas; and the

Honorable Brad Sherman, Member of Congress, the 27th District

of California.

Our second panel will include Dan Metcalfe, Director of the Department of Justice’s Office of Information and Privacy, and Ms.

Linda Koontz, Director of Information Management Issues for the

Government Accountability Office.

Our last panel will include Ms. Tonda Rush, public policy director at the National Newspaper Association, and Patrice

McDermott, director of OpenTheGovernment.Org.

We certainly thank all of our witnesses and again our first panelists for your time in being with us, and we look forward to your

testimony.

With that, I will yield to the ranking member from New York,

Mr. Towns, for the purpose of an opening statement.

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

What I would like to do is to yield to the ranking member of the

full committee, Mr. Waxman.

Mr. PLATTS. Mr. Waxman is recognized.

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

Towns, and Mr. Chairman, for holding today’s hearing. This is our

second hearing on the Freedom of Information Act, and I am

pleased that the subcommittee is continuing its oversight of this

vital law that ensures public access to Government information.

Open Government is a bedrock of our democracy. Yet over the

past 4 years, we have witnessed an unprecedented assault on the

Freedom of Information Act and our Nation’s other open Government laws. Administration officials have undermined the Nation’s

Sunshine Laws while simultaneously expanding the power of Government to act in the shadows. The presumption of disclosure

3

under the Freedom of Information Act has been overturned. Public

access to Presidential records has been curtailed. Classification and

pseudo-classifications are on the rise. These trends are ominous.

In December 2005, President Bush took a promising step by signing an Executive order calling on agencies to improve the operation

of the Freedom of Information Act and to develop a citizen-centered

approach that will speed up response times and reduce backlogs.

This Executive order is certainly a step in the right direction. If implemented properly, it could address some of the problems faced by

FOIA requestors, but even if it is fully implemented, the Executive

order will not address all of FOIA’s problems.

Our first panel today is composed of a bipartisan group of Senators and a Representative who have taken important steps to improve the operations of the Freedom of Information Act. They have

introduced legislation that aims to speed up agency responses to

FOIA requests and to fix weaknesses in the act, and I hope that

we will be able to work as a committee to consider their legislation.

But, the Bush administration’s wholesale assault on open Government demands that Congress pass a comprehensive response,

and that is why I introduced the Restore Open Government Act.

This legislation restores the presumption that Government operations should be transparent. It overturns President Bush’s Executive order curtailing public access to Presidential records, prohibits

the executive branch from creating secret Presidential advisory

committees, and eliminates unnecessary secrecy at the Department

of Homeland Security. In addition, it eliminates unnecessary pseudo-classifications that restrict public disclosure of Government

records.

Government secrecy has a high cost. It breeds arrogance and

abuse of power while Sunshine fosters scrutiny and responsible

Government. That is why it is so important that this committee act

on the Restore Open Government Act.

Chairman Platts, I want to thank you again for holding this

hearing and for your continued interest in open Government and

the Freedom of Information Act. I yield back my time, and I appreciate Mr. Towns, the ranking member, yielding to me the opportunity to go first.

Mr. PLATTS. Thank you, Mr. Waxman.

I yield back to Mr. Towns.

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

this hearing on legislative proposals to improve our current FOIA

laws and increase Government transparency for all citizens. I welcome our witnesses and especially appreciate the efforts of our distinguished colleagues from both chambers, who are joining us

today.

The cornerstone to a free and democratic society is reliant upon

the principle of public access to governmental activities. As I have

said many times, open access to Government information and

records serve as a counterweight to ill timed or uninformed Government decisions and ensures that decisionmakers are held accountable for their actions.

As FOIA celebrates its 40th birthday—so let me say to FOIA,

happy birthday—new challenges concerning the protection of National Security information, limited agency resources, and volumes

4

of FOIA requests are increasing the amount of time taken by agencies to comply. These factors contributed to a new 25 percent increase in the number of backlogged FOIA requests Governmentwide in 2005 when compared to the previous year. Although the

administration issued Executive Order 13392 in order to improve

upon current results, it remains unclear if it will strengthen agency

compliance or reduce the number of requests resulting in litigation

or administrative challenges. This outcome, I believe, is symptomatic of the overzealous safeguarding of information that has no

implication on our Government’s National Security or law enforcement activities.

In short, extensive backlogs and protracted litigation is not a

model for open or transparent Government and remedies must be

put in place to reverse these trends. It is my hope, Mr. Chairman,

that our witnesses today can bring clarity to these issues and offer

us an efficient blueprint to improve the FOIA process.

So, on that note, Mr. Chairman, I conclude my statement and

say that I really appreciate the commitment and dedication that

you have shown to this issue because, as you know, the American

people are concerned.

On that note, I yield back.

Mr. PLATTS. Thank you, Mr. Towns.

I yield to the gentleman from Minnesota for an opening statement.

Mr. GUTKNECHT. Mr. Chairman, I will be very brief, but I would

concur with my colleague that I am delighted we are having these

hearings because I think this is something that is fundamental to

our American democracy. It is one thing to have a Freedom of Information Act; it is another thing to make sure it is implemented

in the way that Congress intended.

I want to share one real quick example from my District, and

this has been a frustration for over a year now, where you have

one particular U.S. Marshal’s Office who will not allow a photograph of someone who has been convicted, not someone who has

been charged but convicted. So we have different interpretations of

what the rights and responsibilities are between various jurisdictions.

This is a multidimensional kind of issue, and I really do applaud

you for having these hearings. I think it is clearly a congressional

responsibility to do what we can, to see that not only do we have

freedom of information but more importantly, that information ultimately is shared with the public in a very reasonable and responsible way.

Thank you.

Mr. PLATTS. Thank you, Mr. Gutknecht.

We are pleased to be joined by a member of the full committee,

the gentleman from Vermont, Mr. Sanders.

Mr. SANDERS. Thank you very much, Mr. Chairman, and thank

you for allowing me to sit in on this hearing today.

I am especially pleased to be here today to welcome my colleague

from the State of Vermont, Senator Leahy. I think, in Vermont, we

understand that Senator Leahy has been one of the leading congressional champions of open Government and the right of the people to know, which in fact is the cornerstone of what American deVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
5

mocracy is about, and we very much applaud his efforts. We are

delighted to see Senator Cornyn here as well.

I think there is a bipartisan concern in this country, right here

in Congress and on this committee, that while we hear a whole lot

of talk in Congress and in the White House about freedom, freedom, freedom, you can’t have a free society unless the people know

what is going on. It is a very serious problem when people of this

country try to secure information about the goings-on of their own

Government and cannot get that information. That is not what

freedom is about, and that is not what democracy is about, and

that is an issue we have to address as we celebrate the 40th Anniversary of FOIA.

Thank you again, Mr. Chairman. I am delighted to welcome our

guests.

Mr. PLATTS. Thank you, Mr. Sanders.

We appreciate our colleagues’ patience while we had our statements. We are again very pleased to have our three distinguished

colleagues with us and again thank each of you for your leadership

on this issue in advancing the cause of freedom of information and

ensuring that our citizens know what their Government is up to.

Senator Leahy, we will begin with you.

STATEMENTS OF HON. PATRICK LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT; HON. JOHN CORNYN, A U.S.

SENATOR FROM THE STATE OF TEXAS; AND HON. BRAD

SHERMAN, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA

STATEMENT OF HON. PATRICK LEAHY

Senator LEAHY. Thank you, Mr. Chairman. First off, let me

thank you for doing this. We mentioned and you and I chatted

briefly, privately, about schedules. We know what everybody’s

schedules are like, and to take time for this, I think it is very important.

My neighbor from New York, Mr. Towns, I appreciate very much

your very strong statement, and that meant a lot. Of course, I have

my whole House delegation here from Vermont with Congressman

Sanders. [Laughter.]

We appreciate his efforts. I would note that when he was mayor

of our largest city, he didn’t need a FOIA law. He ran the most

open administration that the city had ever seen. So he is committed.

Mr. Gutknecht, thank you very much for what you said.

The Freedom of Information Act is something I have talked

about, I think, ever since I came to the Senate. I am pleased to be

here with, of course, Representative Sherman and my distinguished friend, Senator John Cornyn from Texas.

Now I always worry when I say nice things about John Cornyn

on these, that the State Republican Party is going to have a recall

petition on him, and that is not my intention for saying it. He has

been a great partner and ally in our efforts to strengthen and improve our open Government laws.

In open Government laws, it doesn’t make any difference whether you have a Republican or Democratic administration, you want

6

open Government. The two of us have tried to demonstrate to our

other colleagues that this is not a partisan issue. It is a bipartisan

partnership. We have co-sponsored three FOIA bills. One has

passed the Senate; another has been reported out of the Judiciary

Committee. So we are going to keep working on this.

Fulfillment of the public’s right to know ebbs and flows. As you

mentioned with the happy birthday, it is the 40th Anniversary, and

right now, FOIA is under heavy assault. An overly broad FOIA

waiver in the charter for the Department of Homeland Security,

that is the single largest rollback of FOIA in history. We have seen

the muzzling of Government scientists on issues from climate

change to drug approvals, shifting the burden of proof in the FOIA

process from Federal agencies to the public, expanding use of Government secrecy stamps, threats of criminal prosecutions of journalists, and undermining whistleblowers even though we have laws

for them.

Those are troublesome when you want to have open Government,

but I think chief among the problems is the major delay encountered by FOIA requestors. According to a recent report on FOIA by

the National Security Archive, the oldest outstanding FOIA request

dates back to 1989. To put that in perspective, we had a Soviet

Union then. That was before its collapse. In fact, according to the

report, the oldest of these outstanding FOIA requests was submitted to the Defense Department in March 1989, by a graduate student. The graduate student is now a tenured law professors.

Now these are most extreme cases, of course, but we have Federal agencies operating under a 2001 directive from former Attorney General Ashcroft that gives them the upper hand in FOIA requests, reversing the presumption of compliance directive issued

earlier by Attorney General Reno. Then you have exceptions.

Under Section (b)(3) of FOIA, Congress can exempt additional

records from FOIA by statute. But often, the language when we exempt this is buried so in legislation that nobody in the public, including some Members of both bodies that vote on it, ever see it

until after the fact.

We have seen the placements of fees or limits on the fee waivers

afforded to journalists. The National Security Archive, an independent non-governmental research group and a valued information clearinghouse for the press, now we have the CIA rescinding

the search fee waivers for them.

President Bush issued Executive Order 13392 in December of

last year. I see it as a constructive first step, but it is not the comprehensive reform we have.

FOIA is 40 years young, but the law’s values of openness and

transparency in Government are timeless in their importance of

Government of, by, and for the people. No generation, no generation can take this for granted. I think we have responsibility to

leave to each generation a stronger FOIA. Incidentally, most of

what I have said today about the need for a stronger FOIA is exactly what I said when it was a Democratic administration. An

open Government is a better government.

7

Thank you.

I want to ask permission for my whole statement to be part of

the record.

[The prepared statement of Senator Patrick Leahy follows:]

8

9

10

11

12

13

14

Mr. PLATTS. Senator Leahy, if you would like to complete it, that

shouldn’t have been read.

Senator LEAHY. I will just put it in the record.

Mr. PLATTS. OK, without objection.

Senator LEAHY. I know Senator Cornyn has a tough schedule

this afternoon too, and I don’t want hold him up any longer.

Mr. PLATTS. I just want to comment that one of the parts of your

statement is a presumption of the burden of proof. Clearly, the intent is supposed to be on the Government in withholding, not on

the public trying to prove the case, and I think your statement is

right on point.

Senator LEAHY. Thank you very much.

Mr. PLATTS. Thank you, Senator Leahy.

Senator Cornyn.

STATEMENT OF HON. JOHN CORNYN

Senator CORNYN. Chairman Platts and Ranking Member Towns

and to the entire committee, thank you for allowing me to come

join you today in this oversight hearing. This is an important subject, and I appreciate the opportunity you have given me to testify.

When I came to Washington about 31⁄2 years ago, coming as a

former Attorney General of my State and someone responsible for

enforcing the open Government laws and a firm believer in the

benefits of transparent Government and Sunshine, I looked for an

ally in the Senate and was pleased to see on the Judiciary Committee, the Ranking Member Senator Leahy who, as was pointed out,

has a long and distinguished record when it comes to enforcement

of our open Government laws.

To me, it represented a great opportunity for us to work in a bipartisan way on a principle that we feel very seriously about. I

want to congratulate him publicly on his leadership in this area,

and I am pleased to be able to work with him now to see if we can

continue to advance this cause through the Judiciary Committee

and the U.S. Senate.

Freedom of information and openness in Government are among

the most fundamental principles of our Government. The Declaration of Independence makes clear that our inalienable right to life,

liberty, and the pursuit of happiness may only be secured when

‘‘Governments are instituted among men, deriving their just powers from the consent of the governed.’’ It is clear that consent,

which is the fundamental foundation for legitimacy of our Government and our laws should be informed consent.

I associate myself with the comments made by members of the

committee and Senator Leahy, and I am sure Congressman Sherman will make, that this is really fundamental to who we are and

to give the American people the opportunity to have a voice. After

all, we work for them, and there is no way for them to know the

kind of job we are doing unless they get access to information to

make an informed judgment.

Because of the belief in these shared values, Senator Leahy and

I introduced the Open Government Act which is designed to ensure

that our open Government laws remain robust. It contains more

than a dozen substantive provisions that are intended to achieve

four important objectives: No. 1, to strengthen the Freedom of InVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
15

formation Act and to close loopholes; second, to help requestors obtain timely responses to their requests, hopefully more than a 1989

request still pending; we need to do better; third, ensure that agencies have strong incentives to act on FOIA requests in a timely

manner; and fourth, to provide FOIA officials with the tools they

need to ensure that our Government remains open and accessible.

Now while I have found that these goals in our legislation are

certainly something we would all agree are very positive, some of

the folks back home in Texas when I told them what we are trying

to do up here in Washington, they say, what is the big deal? We

assume that the law would be the same in the Nation’s Capital and

across this country as it is in our States. So they view many of

these provisions, which are even controversial here in Washington,

as things that should be in the fundamental law of the land.

This legislation reinforces our belief that FOIA establishes the

presumption of openness that was mentioned a moment ago and

that our Government is based not on the need to know but on the

fundamental right to know, and I believe it is important to pass

the legislation.

There has been some discussion about the President’s Executive

order, and I am pleased that the President has seen fit to elevate

this issue by the Executive order, but I don’t believe that is a substitute for the kind of legislation that Senator Leahy and I have

introduced and that this committee will consider as well.

In conclusion, Mr. Chairman, I am under no illusions about the

real and legitimate obstacles that some in the Government face

when implementing FOIA policy, and I doubt anyone has it harder

than the FOIA officer quoted in the Department of Defense report

who, when asked to indicate obstacles that impede processing,

wrote, ‘‘Unique location in Baghdad, Iraq. Mail processing slow,

slow IT connections, lack of fax capability and ground transportation is dangerous.’’

So not all resistance to open Government and freedom of information requests are borne out of malice. Sometimes conditions on

the ground make it difficult to comply, but it is our job to make

sure not only that the laws are sufficient to provide that openness

but also to make sure that our Government officials responsible for

responding can, to the maximum extent which conditions permit,

respond in a timely and complete manner.

I remain committed to working with those in the trenches, both

literally and figuratively, who labor to respond to these requests.

Whether it is enhancing the FOIA laws as reflected by the Open

Government Act or providing resources targeted to specific backlogs

or legislative changes in the way the administration allocates FOIA

personnel, I stand ready to work with this committee as I do with

Senator Leahy to advance these ideas.

Finally, let me just say, lest there be any doubt about it and

there is not, this is not a partisan issue. As Senator Leahy has observed many times, Democrats and Republicans alike like to trumpet their successes and hide their failures, and it is just human nature. We have an obligation to the American people, and we have

an obligation to our form of Government to make sure that it

works, to make sure that people have the information they need in

order to judge what we are doing, in order to grant that informed

16

consent which is the foundation of the legitimacy of our Government.

So thank you very much for the opportunity to be here and testify, and we look forward to working shoulder to shoulder with you

in the fights that loom ahead.

[The prepared statement of Senator John C. Cornyn follows:]

17

18

19

20

21

22

23

24

25

26

27

28

Mr. PLATTS. Thank you, Senator Cornyn, and I certainly share

the belief of the importance of this. It is not a partisan issue but

a good Government, bicameral issue, and we look forward to working with you. I think your point about the States that really have

show and taken a lead and give us great examples to follow, that

was again the intent of the Founding Fathers, that they are kind

of the laboratories of democracy, and we can learn from them as

opposed to thinking we always have the answers here in Washington.

Congressman Sherman.

STATEMENT OF HON. BRAD SHERMAN

Mr. SHERMAN. Well, thank you, Chairman Platts and Ranking

Member Towns for inviting me to testify on this important Executive order and on the broader issues of open Government and ensuring the press and the public with access to Government information. Of course, I am delighted to be appearing here with Senator Cornyn and Senator Leahy, two Senators who have put so

much effort into this and who share my belief that we must improve the accountability, accessibility, and openness of the Federal

Government by improving FOIA.

Executive Order 13392 was issued on December 14, 2005. Mr.

Chairman, I believe you were there, and I believe that Senators

were as well. It requires agencies to review their FOIA operations,

develop an agency-specific plan, and to report to the Attorney General and the OMB Director on their review, development, and implementation of an agency plan by June 14, 2006. So the 25 major

agencies were required to do this. All but three have, and I know

we all look forward to the State Department, Homeland Security

Department, and USAID submitting their reports.

While the Executive order was helpful, it failed to deal with a

number of problems including the fact that under FOIA, the exemptions are too broad; the delays are too numerous; there is complete lack of meaningful penalties for either individuals or agencies

that violate FOIA; as the Senators each pointed out, the shift in

the burden of proof to the person requesting the information; and

finally, the difficulty of recovering of recovering attorneys’ fees

when litigation is successful.

On July 4th, earlier this month, a private group, the

OpenTheGovernment.Org, issued a report on well the Executive

order was working. The report found that the agency-specific plans

for 17 agencies did not address the various points that were required by the Executive order. At least 43 percent of those points

were not even covered. The Open The Government group rated 12

percent of the agency plans as poor and 36 percent as merely adequate.

Now Senators Cornyn and Leahy have offered two bills dealing

with FOIA, the Open Government Act of 2005 and the Faster FOIA

Act. Congressman Lamar Smith and I have sponsored identical

bills in the House. As much fun as we are having here at this hearing, think of how much fun we would have if we were watching a

markup of those two bills here at the subcommittee.

The Open Government Act was described in part by the Senator

from Texas. It would provide meaningful deadlines for agency acVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
29

tion and impose real consequences on Federal agencies for missing

statutory deadlines. It would enhance provisions in current law

which authorize disciplinary action against Government officials

who arbitrarily and capriciously deny disclosure. The bill would establish the Office of Government Information Services to review

the FOIA process, implement a better tracking system of FOIA

claims, and set a 20 day time limit for agencies to decide whether

to comply with claims, and allow easier recovery of legal fees for

claimants who successfully litigate to gain information.

Specifically as to legal fees, the bill would make agencies, in

more instances, pay those costs when efforts to pry open records

through the courts are required in order to get information. The

current law makes agencies pay attorneys’ fees when the news

media or the others requesting the information substantially prevailed. Under the Open Government Act, the requestor could recoup fees and legal costs if that requestor obtained a substantial

part of the requested relief or caused the agency to change its position on the disclosure of records. Those who partially prevail in litigation should get their attorneys’ fees. That is one way to inspire

agencies to avoid this whole litigation process and instead provide

the requestor with the information.

Similarly, the Faster FOIA Act would establish an advisory commission of experts and Government officials to study what changes

in Federal law and policy are needed to ensure most effective and

timely compliance with FOIA. It would direct the commission to report to Congress and the President as to how to deal with these

lengthy delays, and of course in this case, information delayed is

information denied. We have to be as attuned to the timeliness of

response as to its quality.

So I urge the subcommittee and ultimately the full committee to

mark up H.R. 867, the Open Government Act, and H.R. 1620, the

Faster FOIA Act.

Once again, thank you for inviting me to appear.

[The prepared statement of Hon. Brad Sherman follows:]

30

31

32

33

Mr. PLATTS. Thank you, Congressman Sherman.

In looking at the original debate and taking 11 years to pass

FOIA 40 years ago, the last major revisions, I believe, were 10

years ago. We are approaching that 11 year mark again. So maybe

we will have success in legislative reforms going forward, and we

certainly look forward to working with you.

Congressman Smith was invited as well but had a conflict and

was not able to be with us.

I know you three need to run. We appreciate, again, your testimony. If I could ask one quick question, and I apologize in not getting you out of here.

If there was one issue that the three of you saw as the most important when we look at the two different approaches in the legislation—the timely response and the lengthy delays and the most

egregious example back to 1989, closing the loopholes and there

being too many exceptions, a growing number of exceptions, or the

mediation issue and having a better ability to dispute where there

is a denial. Would you prioritize any one of those above the others

or do you think they all go hand in hand?

Senator LEAHY. I think they are all important, but I think the

recent trend of creating exceptions is a mistake, especially they are

buried in legislation that we are to apt to see. That worries me. We

should be doing just the opposite, and it should be an extraordinary

thing if an exception is going to be made. That is something on

which Republicans and Democrats should come together and say

this is extraordinary.

Senator CORNYN. I would agree with what Senator Leahy said,

but to me, the most important thing we could do is to create real

and meaningful consequences for failure to meet deadlines and to

comply. Right now, there is no real incentive to do that other than

the Government employee being a good, diligent employee. In fact,

the incentives are all in favor of those who would receive a request

and sit on it and basically wait out the requestor until they just

went away. So I think real and meaningful consequences to a failure to respond on a timely basis is the most important thing to me.

Mr. PLATTS. Congressman Sherman.

Mr. SHERMAN. I think the Senators have hit it on the head. The

exemptions are too numerous and too broad, and there are simply

no penalties either on the agency or on the individual employee

who simply refuses to comply with FOIA.

Mr. PLATTS. Thank you, Congressman Sherman.

I, again, appreciate your testimonies.

I know the ranking member wanted to comment as well.

Mr. TOWNS. No more than just to thank the Senators for coming

and to thank our colleague on this side of the aisle as well for the

work that they have done in this area, and we look forward to

working with you because I must admit the areas that you are concerned with, I am also concerned with as well.

Thank you very much, Mr. Chairman.

Mr. PLATTS. Thank you, Mr. Towns. This hearing hopefully will

lay the groundwork for that markup that we are all looking for.

The committee will stand in recess for about 2 minutes while we

seat the second panel.

[Recess.]

34

Mr. PLATTS. This hearing will reconvene.

I would like to also note we have been joined by the gentleman

from Tennessee, Mr. Duncan. Thank you for being with us. Mrs.

Maloney from New York was here with us briefly.

We are moved to our second panel now. The practice of the subcommittee and the full committee is to swear in our witnesses.

Now that you are seated, if I could ask you to stand and raise your

right hands.

[Witnesses sworn.]

Mr. PLATTS. Thank you. The clerk will note that both witnesses

affirmed the oath. We appreciate your written testimonies, and we

look forward to your oral testimony. We will keep the record open

for 2 weeks after the hearing for any additional information you

may provide.

We will now proceed, Mr. Metcalfe, with you. Again, thank you

for being with us.

STATEMENTS OF DAN METCALFE, DIRECTOR, OFFICE OF INFORMATION AND PRIVACY, U.S. DEPARTMENT OF JUSTICE;

AND LINDA KOONTZ, DIRECTOR, INFORMATION MANAGEMENT ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE

STATEMENT OF DAN METCALFE

Mr. METCALFE. Thank you, Mr. Chairman, and good afternoon,

Mr. Chairman and members of the subcommittee.

As the Director of the Department of Justice’s Office of Information and Privacy, I am very pleased to be here this afternoon to address the subject of Freedom of Information Act and the status of

the implementation of Executive Order 13392.

The Department of Justice is the lead Federal agency for the implementation of the FOIA, and it works to encourage uniform and

proper compliance with the act by all agencies through its Office

of Information and Privacy which is known by its initials OIT. The

91 Federal agencies that are subject to the FOIA handle many millions of FOIA requests per year at a cost now approaching $400

million annually, and they work hard to do so with the limited resources that are available to them. This does not mean, of course,

that there is not room for improvement.

On December 14, 2005, the President issued Executive Order

13392 entitled Improving Agency Disclosure of Information. In this

Executive order, he directed that the executive branch’s FOIA activities should be ‘‘citizen-centered and results-oriented,’’ and he instructed each agency to take a number of specific concrete actions

in order to implement this policy. These actions have been taken

within individual Federal agencies, of course, but they have been

coordinated by the Justice Department and the Office of Management and Budget on a Government-wide basis. I appreciate having

this opportunity to describe to the subcommittee these particular

areas of FOIA activity.

Soon after the Executive order’s issuance, the Justice Department and OMB disseminated it throughout the executive branch to

the heads of all agencies as well as to all key FOIA personnel directly and provided preliminary guidance to agencies regarding it.

OMB’s guidance, issued on December 30, 2005, by its Deputy DiVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
35

rector, highlighted the Executive order’s requirements, drawing immediate attention to its most immediate one, that is, its mandate

for the appointment of a chief FOIA officer at each agency by January 13th. The Justice Department’s counterpart guidance memorandum comprehensively discussed the Executive order’s provisions

as well, and shortly after January 13th, the Justice Department

posted a comprehensive list of all agency chief FOIA officers.

The President next required that agencies establish FOIA Requestor Service Centers and FOIA Public Liaisons in order to provide information about the status of their FOIA requests which

they immediately began to do.

He further directed each agency, by June 14th, to ‘‘conduct a review of the agency’s FOIA operations’’ and develop ‘‘an agency-specific plan to ensure that the agency’s administration of the FOIA

is in accordance with applicable law’’ and the Executive order’s

policies.

He required that each agency’s plans ‘‘include specific activities

the agency will implement to eliminate or reduce the agency’s

FOIA backlog,’’ as well as ‘‘concrete milestones with specific timetables and outcomes to be achieved’’ by June 14th.

To best facilitate these critical agency reviews and the consequent development of individual agency improvement plans, the

Executive order convened a major conference for all of these newly

designated chief FOIA officers and accompanying key FOIA personnel on March 8th. This conference was keynoted by the Associate

Attorney General and OMB’s Deputy Director for Management.

Their remarks were followed by detailed discussions of the Executive order’s provisions and implementation in order to ensure that

chief FOIA officers would understand fully and be able to discharge

comprehensively their responsibilities. A wide range of potential

improvement areas was presented for all agencies’ consideration in

addition to those identified by the agencies themselves as particularly well suited to their own individual circumstances.

The following month on April 13th, OMB’s Director issued a

memorandum that emphasized the importance of ‘‘ensuring the

success of this important Presidential initiative.’’

Then as agencies advanced further in their ongoing reviews and

planning, the Department of Justice conducted three followup programs for all agencies, one each month until the deadline. The Department made available to all agencies specific formatting guidance ultimately reflected in its own FOIA improvement plan as a

model.

The Department also provided extensive written guidance to all

agencies. This guidance which was issued on April 26th, in coordination with OMB, was distributed to all agencies at the first of

these followup sessions at OIP and also was made available

through the Department’s FOIA Web site. It contained discussions

of more than two dozen potential improvement areas identified for

possible inclusion in agency plans, and it established a template for

the uniform development and presentation of all plans. Further, it

included supplemental guidelines on the use of agency annual

FOIA reports for reporting the results of the Executive order’s implementation, and it additionally addressed a breadth of questions

and guidance points in aid of all such implementation efforts.

36

Most recently, on July 11th, the Department conducted a special

training conference for the FOIA Public Liaisons of all Federal

agencies whose numbers total nearly 200 in order to review and

emphasize their new responsibilities. At this conference, the Department discussed both the explicit roles of FOIA Public Liaisons

as well as the less obvious but no less important roles that they

can perform in support of their agency’s chief FOIA officer regarding improvement plan implementation and related activities. Special emphasis was placed upon the importance of current implementation efforts and their timely reporting by all agencies in accordance with the Executive order’s firm February 1, 2007, timetable.

Finally, the Department worked quite closely with many individual agencies as the June 14th deadline arrived in order to facilitate

their timely and comprehensive completion of the planning requirement. To further this and to aid the review of all agencies’ improvement plans, the Department has compiled these plans and makes

them available for convenient public access at a single location on

its FOIA Web site. Thus, interested persons can examine all agency

FOIA improvement plans side by side just as they are able to do

with the annual FOIA reports that agencies file.

In conclusion, Mr. Chairman, you can be assured that the Department of Justice looks forward to working together with the

subcommittee on all matters pertaining to the Government-wide

administration of the FOIA, including further activities in implementation of the Executive order. As this subcommittee considers

this relatively new subject area of its oversight jurisdiction, it can

be confident of the Department’s strong and cooperative assistance

on all such matters of mutual interest.

I would be very pleased to address any question that you or any

other member of the subcommittee might have on this important

topic.

[The prepared statement of Mr. Metcalfe follows:]

37

38

39

40

41

42

43

44

45

46

Mr. PLATTS. Thank you, Mr. Metcalfe.

Ms. Koontz.

STATEMENT OF LINDA KOONTZ

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

This important statute establishes that Federal agencies must

provide the public with access to Government information, thus enabling them to learn about Government operations and decisions.

As you know, under the act, agencies create annual reports that

provide specific information their FOIA processing. In addition, a

recent Executive order directs agencies to develop plans to improve

FOIA operations, including goals to reduce backlogs in requests.

These goals are to be measurable, outcome-oriented, and tied to

timetables with specific milestones, so that agency heads can evaluate the success of the plans.

My remarks today will focus on 25 major Federal agencies as we

have done in previous studies. As requested, I will first discuss the

fiscal year 2005 annual reports, comparing those statistics to others reported since 2002. Second, I will discuss whether the improvement plans for these 25 agencies provided the kinds of goals

and timetables required by the Executive order. My statement

today is based on ongoing work we are performing for this subcommittee.

Citizens continue to request and receive increasing amounts of

information from the Federal Government through FOIA. However,

the rate of increase has flattened in recent years. In saying this,

I am excluding statistics from the Social Security Administration

which reported over 17 million requests for fiscal year 2005, a jump

of about 16 million from the year before. Including those numbers

would obscure year to year Government comparisons.

Based on the data from the other 24 agencies, the number of requests received and process in fiscal year 2005 has grown substantially since 2002 but rose only very slightly from 2004. The 24

agencies also report that in fiscal year 2005, they provided records

in full about 87 percent of the time. However, for all 25 agencies,

the number of pending requests at the end of the year has been

steadily increasing, and the rate of increasing, increase has been

greater every year since 2002. At the same time, median times to

process requests varied greatly from agency to agency. The median

times reported range from less than 10 days at some agency components to more than 100 days at others, sometimes much more than

100.

Regarding agency improvement plans, most that we have assessed to date include discussions of reducing backlog, but not all

consistently followed the Executive order guidance. Three agencies

had not published their plans by June 30th, and thus we could not

analyze them for this hearing, and one agency reported no backlog.

Based on our ongoing analysis, 12 of the remaining 21 agencies

followed the order’s instruction to establish measurable, outcomeoriented goals for reducing or eliminating their backlogs as well as

timetables with milestones for achieving these goals. Nine agencies

did not do this, although they did provide goals and timetables for

47

other kinds of objectives such as performing staffing analyses and

reviewing progress. These nine agencies accounted for a substantial

portion, about 29 percent, of the requests reported to be pending

at the end of fiscal year 2005.

In addition, agencies generally did not specify the dates or numbers they were using as the baselines for their existing backlogs.

Explicit and well defined baselines will be important, so that agencies can measure and demonstrate improvement.

In conclusion, the President’s Executive order creates a renewed

results-oriented emphasis on improving request processing and reducing the backlogs of pending requests. However, without baseline

measurement and tangible steps for addressing the accumulation of

pending cases, the heads of these agencies could find it difficult to

measure and evaluate the results of their planned activities. Accordingly, it will be important for Justice and the agencies to refine

the plans, so that agencies can fully realize the goal of reducing

backlogs and improving responsiveness to agency needs. When we

complete our ongoing work, we expect to provide recommendations

to help move this process forward.

Mr. Chairman, that completes my prepared statement. I will be

happy to answer questions at the appropriate time.

[The prepared statement of Ms. Koontz follows:]

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

Mr. PLATTS. Thank you, Ms. Koontz.

We again appreciate both of your testimonies and, in a broader

sense, both of you for your service in your respective positions to

our Nation and our citizens, and your important work.

I would like to begin the questions with maybe a broad perspective or question on the Executive order. Aside from the actual plans

being submitted and having a strategy going forward, what would

you say is the most significant improvement that has come from

the Executive order being issued within the departments and agencies, from your read of how FOIA is looked at or being acted upon?

Mr. METCALFE. I think I can speak to that, Mr. Chairman, by

making reference to a word that was used by Senator Cornyn in

his statement just a few minutes ago. He said that the very existence or issuance of the Executive order has elevated the whole subject of Freedom of Information and the Freedom of Information

Act’s administration in particular. I think part of that elevation

idea is that it has drawn more and more attention to it. It has

drawn a higher level of attention to it within agencies just in the

appointment of the Chief FOIA officers, for example, at very high

levels, and a high level of accountability.

I know that when I talk to Federal agencies, and I work very

hard to encourage them to do the right thing and to administer the

act in a uniform and consistent and proper fashion, I am able to

wield the Executive order, if you will, in that sort of conversation.

What is more important than that perhaps is that in turn I encourage them to wield it internally within the agencies. From time to

time, you might imagine that FOIA officers get some resistance or

less than maximum cooperation from others involved in the process, who are necessary participants, program personnel and the

like, and the Executive order and its importance can be wielded in

a very positive way in that sense.

Mr. PLATTS. Thank you.

Ms. Koontz.

Ms. KOONTZ. I would agree that the Executive order has provided

more emphasis on the importance of FOIA and on FOIA processing.

Two things in particular that occur to me, and one is that it improves accountability through requiring agencies to appoint chief

FOIA officers which I think is important, and in addition, it provides a results-oriented framework for agencies to move forward.

And I think if agencies are serious in terms of their improvement

plans, I think we will see, we may see significant improvements in

FOIA operations.

Mr. METCALFE. I have to concur, of course, with what Ms. Koontz

says as well. I think she is absolutely correct in that respect as

well.

Mr. PLATTS. Thank you.

I think the fact that the President issued the Executive order, in

raising the kind of focus and attention and in that having certain

requirements such as submitting the plans by June 14th. At that

time, three of the departments and agencies, the State Department

and USAID and Department of Homeland Security, had not submitted theirs. They have since. But again, even though the President said I want this done, three did not do it when it was supVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
114

posed to be done, and it really goes to the final comments of our

first panel about consequences.

Are you aware of any consequences that have been pursued or

announced for failure to meet that deadline or, as we go forward

from here to the November 15th timeframe, any consequences that

have been delineated out there?

Mr. METCALFE. Well, as to the first part of your question, Chairman Platts, I would have to say no, I am not aware of anything

that you have delineated per se. I do know that as the process unfolded, that we worked very hard with agencies to remind them of

the importance of meeting that deadline.

Ms. Koontz correctly points out that three of the agencies did not

meet it. The State Department, although not having its report and

plan in by the June 30th cutoff that they needed to perform their

good work at GAO, it did have its plan in by July 7th, and AID,

I believe, was in roughly the same timeframe. DHS was in a slightly different category. I believe it was more recent, but I can tell you

firsthand, based upon talking to DHS, that it was not for lack of

high level attention to that and trying to move the process forward

as quickly as possible.

As for consequences in a broader sense, I can point out that the

Executive order has built right into it a couple of mechanisms that

are of note. The first is that the Attorney General is charged by

the President under the Executive order to file a report, submit a

report rather to the President by October 14th with an eye toward

the agencies’ plans; and the second is that at the first stage of

agency reporting of their results, agencies are obligated if they do

not meet any particular milestone in their plan, to report that as

a deficiency or at least as a failure to meet a milestone to the

President’s Management Council. That is built right into the Executive order itself.

As to consequences in a broader sense, and I know the question

of penalties has been raised in a broader sense, even discussed at

the hearing last May, I do have additional information regarding

that, and I am not sure whether you want to get into that quite

yet at this time.

Mr. PLATTS. We will come back to on that.

Ms. Koontz, did you have anything you wanted to add?

We are going to come back for additional rounds, but I would like

to yield to the ranking member, Mr. Towns, for the purpose of

questions.

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

I sort of want to pick up on something you started. Mr. Metcalfe,

can you offer us specific examples of what DOJ has done to enforce

agency compliance with FOIA?

Mr. METCALFE. How much time do you have, Congressman, because we have been doing a lot of things for a great many years?

And I am not trying to be flip in my response. There are many,

many things that we have done.

Mr. TOWNS. How about a few? I have a little time.

Mr. METCALFE. All right. The first is something that we used to

call our Short Guide to the FOIA, and we lost our right to call it

that many years ago. We prepare a very lengthy guidance document for Federal agencies. It is one of GSA’s, pardon me, GPO’s big

115

sellers, and we send it around Government-wide. We do an enormous amount of training, both individualized at agencies and on a

Government-wide basis as well. We have a FOIA counselor service

that sometimes is known affectionately as the hotline. We receive

more than 3,000 telephone inquiries per year.

We handle litigation, and that can lead to a guidance function as

well, but I think perhaps the final thing I should mention with respect to Government-wide guidance is that we do develop policy

and disseminate that. All of that policy is aimed toward making

sure that agencies understand the best and most proper way to

apply the law and to do so on a uniform basis.

Perhaps I can sum up my answer by saying we take great pains

every year in an annual report that we file with Congress. It is

filed on a calendar year basis under the law as it stands, not a fiscal year basis, and we file that April 1st of every year. At the final

portion of that report, we have many pages that are called, the report is titled Department of Justice’s Efforts to Encourage Uniform

Compliance with the act. You can just read through that and see

the many, many different things that we do.

Mr. TOWNS. The Department of Homeland Security has not submitted a FOIA improvement plan as required by the Executive

order.

Mr. METCALFE. I apologize for interrupting, Congressman Towns,

but my understanding, and this is something I learned just today,

is that it has finally been submitted.

Mr. TOWNS. It has happened?

Mr. METCALFE. Yes, sir, and I learned that from Ms. Koontz who

sometimes educates me just as I do her. We go back and forth that

way, very symbiotically.

Mr. TOWNS. Well, I thank both of you for educating me because

as of this morning, that had not been. When did that happen?

Ms. KOONTZ. We received the DHS plans, I believe, on Monday,

but I don’t know that it has been made publicly available on the

Web site, but they anticipated the hearing and did give us a copy

of the report.

Mr. METCALFE. I think Ms. Koontz is correct, that it is regrettably not yet posted. There is sometimes a lag between issuing and

posting, unfortunately.

Mr. TOWNS. Right. Well, let me just move to the question. If an

agency does not comply, what do you do?

Mr. METCALFE. Well, I assume by that question, Congressman

Towns, you mean the June 14th deadline that we are speaking of.

Mr. TOWNS. That is correct, yes.

Mr. METCALFE. Well, we did a number of things. We did have

some agencies, as you know, that had not met that deadline, and

in every one of those instances, someone in my office and then followed up by me personally contacted the agency to discuss that. In

some instances, we had extensive discussions about particular difficulties that had been encountered by the agencies. I should emphasize here that it is a relatively small number of agencies involved here, just a handful or two or so. That led to most of those

agencies complying very quickly. However, as you have identified,

there were three agencies that took a little bit longer than that.

116

Mr. TOWNS. I guess to you Ms. Koontz, if we were to remove sensitive or intelligence-related information, how well would intelligence community agencies like the CIA and State have done in

fulfilling FOIA requests?

Ms. KOONTZ. That is a question I cannot answer based on the

data that we have in the annual reports. I have no way of removing that kind of specific information, those specific requests.

Mr. TOWNS. Let me try it this way then. Is there a correlation

between the increase in the number of FOIA request backlogs and

the restrictive policies put in place by certain agencies?

Ms. KOONTZ. We are still in the early stages of our work. We

haven’t run those kinds of analyses. I don’t know if it is even possible to do those kind of correlations based on the data that we

have, but we will look very closely at the data that was reported,

and we will be following up with individual agencies to see what

it is we can learn from that.

Mr. TOWNS. I see my time has expired. Mr. Chairman, we are

getting another round?

Mr. PLATTS. Yes, Mr. Towns, we will come back.

Mr. TOWNS. Thank you.

Mr. PLATTS. Mr. Gutknecht.

Mr. GUTKNECHT. Thank you, Mr. Chairman.

In response to what Mr. Towns just said or at least it sparked

my memory of something that happened to me recently and for the

benefit of the committee and those that may be here. I was briefed

recently by some folks in the Intelligence Committee about a couple

of issues, and one of the pieces of information seemed incredibly innocuous, and then they quickly said, but that is top secret.

I said, why?

They said, well, the information itself is not but how we got it

is, and so we have to sometimes be sensitive to the sources of the

information that we have.

So I do want to give some benefit of the doubt to Homeland Security.

I want to come back to something I raised earlier that I have

been involved with and more importantly, my staff has been involved with for over, I think, it is almost 2 years. It is over a year

and a half. That is there is an individual who had embezzled a

bunch of money from his clients, and he was ultimately convicted.

The local newspaper, the Faribault County Register, wanted to run

a picture of his mugshot, and the local U.S. Marshal’s Office in St.

Paul said that they don’t give out those, even after they are convicted.

Mr. Metcalfe, is there a clearly defined policy because it is our

understanding and particularly through the Newspaper Association, that varies from region to region? Is there a set policy on

that?

Mr. METCALFE. Congressman, I remember your mentioning that

in your opening statement, and I have been thinking about that a

bit since then, so that I can give you a clear and comprehensive

answer. In general, and I am speaking now about the policy of the

U.S. Marshal Service, a component of the Department of Justice.

In general, they have a policy of applying a privacy exemption, specifically Exemption 7(c) of the FOIA, which is the Law Enforcement

117

Privacy Exemption, to such photographs that are commonly referred to as mugshots.

I think I can discern, however, a basis or perhaps the basis for

your questioning in that regard, in that there is an appellate court

decision that was issued by the Sixth Circuit Court of Appeals. The

plaintiff in that case was the Detroit Free Press. It came down

many years ago, and it ruled a different way. The Marshal Service,

I believe, does follow an exception to its policy for any FOIA requestor within the geographic boundaries of the Sixth Circuit, Tennessee, Kentucky, Michigan, and Ohio, based upon that decision.

That is my best current understanding, sir.

Mr. GUTKNECHT. I think that is a very good understanding. You

have done a better job of explaining it than anybody.

Mr. METCALFE. Well, I had more time to think about it, perhaps,

sir.

Mr. GUTKNECHT. But I have waded into this, and it leads me to

my next question. Finally, on March 21st of this year, I wrote a letter to the Assistant Attorney General who is responsible for this

and on May 1st, I got sort of an acknowledgment that they received

my letter and that they would get back to us. Today is what, July

27th.

Mr. METCALFE. I believe it is the 26th, sir.

Mr. GUTKNECHT. The 26th, as of today, we have not received any

further correspondence on this matter. The reason I raise that is

I don’t think Members of Congress ought to get special treatment,

but if it takes a Member of Congress that long to get a response,

I think it is legitimate for us to ask is that pretty much the standard because we heard from Ms. Koontz that some are as quickly

as 10 days. That really hasn’t been the experience we have heard

about.

Obviously, if people get a quick response and get what they

want, they probably don’t call us, but if it takes us that long to get

an answer, is it fair to assume that maybe other people take a long

time as well?

Mr. METCALFE. Congressman, if I could speak to that just to

interject, I think I can say two things in particular directly responsive to your question. The first is that, although I do not know of

the current status of any such particular matter, I would be

pleased to take that back with me today and to express your concern regarding what we would call a congressional inquiry type

matter.

The second thing goes to the phrasing I just used which is I

think it is important, please correct me if I am mistaken, to keep

in mind that your correspondence was a congressional inquiry; it

was not a FOIA request. By that, I mean to say it is a delineation

that is significant. Sometimes there are considerations that come

into play with responding very, very carefully to a congressional

correspondence item that have nothing to do with FOIA requests

per se. So the two really are distinct.

Mr. GUTKNECHT. Ms. Koontz, though, more specifically, would

you include in your 10 days, does a letter of acknowledgment of the

receipt of a request constitute a response?

Ms. KOONTZ. I am sorry. Does it a constitute a response to the

request?

118

Mr. GUTKNECHT. As you keep score, when you said some were responded to in as quickly as 10 days, is that 10 day response merely

an acknowledgment or is a real response to what the request was?

Ms. KOONTZ. My understanding is it is a real response to the request. I think the thing that is important to keep in mind here is

that FOIA processing varies widely among different agencies and

probably within different departments and different components

within agencies. Some FOIA requests are very straight forward. It

could even be a request for a one’s own medical records, say, at the

VA, which can be turned over instantly or within a very short period of time.

Others at other departments, you can imagine at the CIA, we are

talking about having to maybe search voluminous amounts of information, perhaps redact information that should be kept confidential. The level of complexity, the numbers, the types, the missions

of agencies cause this to be very different at different places and

at different points in time.

Mr. GUTKNECHT. We understand that. Mr. Chairman, I am not

a big believe in PowerPoint demonstrations always, but I think this

is one where it might be helpful if you could put together something that would put into context because I do think there is a big

difference between simply requesting whether or not grand-dad

ever got his Purple Heart or other kinds of information that may

contain therein some sensitive things that do need to be redacted.

I understand that.

Mr. Chairman, I hope we will have another round because I want

to get to a couple of other questions.

Mr. METCALFE. Mr. Chairman, if I could ask just for a brief

interjection.

Mr. PLATTS. Yes.

Mr. METCALFE. I am able to give a very specific response to Congressman Gutknecht on that exact question and very quickly say,

no, an acknowledgment letter such as you describe is not responding to a FOIA request as a matter of both law and policy. agencies

issue acknowledgment letters all the time, but that has nothing to

do with complying with the statutory deadline. A full decision and

disclosure thereafter are what is necessary to comply.

Mr. PLATTS. Thank you for that important clarification, Mr.

Metcalfe. We will come back around for a second round.

I want to followup on that exact point with Mr. Gutknecht on the

difference in looking, Ms. Koontz, at your data and as always at

GAO, you do a great job of compiling and presenting. If I am reading it correctly in the materials included in your statement, where

it has for each of the departments and agencies, the numbers of requests processed in 2004 and 2005 and the median response time,

I tried to pick two that don’t get into national security and law enforcement that are more sensitive. The Small Business Administration which has no backlog is what they are saying, and for 2005,

they had I think 3,737 requests processed with a median days to

process of seven. Comparing that to the Department of Education

which had 1,874 and a median days of 35.

Are you able to share any insights on that comparison of why we

would see such a disparity, one getting twice as many requests and

yet its median response time is one-fifth the amount of time of the

119

other agency and neither one of them being in National Security,

things that we would think of as more sensitive for our Nation?

Ms. KOONTZ. I think you zeroed in on some questions that we

certainly have about the data. The one, the information that we

presented in this report is based on what the agencies report in

their annual reports which is aggregate data. What we don’t get

from the annual reports is a sense of what the character of those

requests are or how difficult they are or what they are for. I think

until you could go in and actually look at individual requests and

understand what the differences are, I don’t think that you could

answer that question, and that would be, I mean, tremendously difficult to do too because it is talking about going back to the individual requests and evaluating them.

Mr. PLATTS. I agree. It will be challenging, but it may be something, as we try to get to the crux of the problem here, that would

give us a more factual basis of what is working or what is not

working because it is quite a different in median time and again

for two agencies you would expect to have more straight forwarding

handling of these types of requests.

Ms. KOONTZ. I think what might be, I mean, frankly, the only

way to really I think understand FOIA and some of the barriers

in terms of processing is to get down to that level as well. This

might be the kind of thing that perhaps as we do our ongoing work,

we can identify some examples like that and talk about the differences between, say, an SBA and some other agency or the difference between VA and SSA and why they are able to process

things so quickly compared to other agencies where it is much

more difficult. So that might illuminate some of these differences.

Mr. PLATTS. Mr. Metcalfe, a followup on that same issue is with

your efforts in compliance, I assume as opposed to a stick approach

of, hey, you are not doing this; you are not following the law. As

far as knowledge sharing, is there any effort within the Department of Justice to say to Education, we have looked at your annual

numbers, and based on what you are telling us, you are taking five

times as much time as SBA is with half of the workload; perhaps

we want to get the two of your agencies together to see what they

are doing differently?

Is there any type of dialog of that nature that departments interact and say, what are you doing that is working compared to apparently what is not working ours?

Mr. METCALFE. Yes, Congressman, I think my answer is best

twofold. One is with respect to the ongoing activities we have in

general and have had for many years of getting agencies together

in a program such as our FOIA Administrative Forum where we

get journeymen FOIA officers from all the different agencies together to share best practices and ideas like that and the like. We

do do that sort of thing and have done it for a while.

Now beyond that, under the current Executive order, we have a

basis for focusing and discussing even more particularly as we see

what agencies do in the implementation of their plans in this current phase that will end in mid-January or February 1st of next

year.

Mr. PLATTS. Is there, when you do those programs, mandatory

participation of departments and agencies?

120

Mr. METCALFE. I think the word mandatory, Chairman Platts, is

a little bit strong, but I can tell you this. We have no trouble filling

the seats. As a matter of fact, it is quite to the contrary. We have

run a backlog, if you will, of our own of people who are waiting

lists for our training, and we train literally thousands and thousands of agency personnel as there is turnover in that particular

area and always new people are coming in. So, although it is not

mandatory in the sense in which I think you mean it in the question, it has never struck us as a difficulty in getting people there.

Mr. PLATTS. Maybe pursuant to the Executive order, having the

chief FOIA officers that have now been designated is a sense of

there being a formal and more mandatory participation. Something

I am assuming you don’t do that may provide that incentive in a

maybe less public way but inside the agencies, more public, is

when they come into that meeting, if these charts that GAO put

together with number of requests and median times to process are

listed across the board where all of them are together and they are

all going to say, hey, we look pretty good up there or they are going

to say, we don’t look good up there. The next time I walk into that

meeting room, I am going to do my best to improve my process because I am going to be with my colleagues.

Mr. METCALFE. I take your point, Chairman Platts, and I appreciate your reminding me that under the current Executive order,

we have had programs that are perhaps not most precisely described as mandatory but pretty darn close. That program we had

for chief FOIA officers on March 8th was just such a program, and

then the one that we had for all the FOIA Public Liaisons on July

11th was very much along those lines as well. Those are people

who are at a lower level within the agencies. As we all know as

a practical matter, the ability to mandate, if you will, attendance

increases, the lower the level of the employee, but we were very

pleased with the level of attendance we had on March 8th, getting

all of those chief FOIA officers together.

Mr. PLATTS. Is there anything in the works now for a followup

on that as they have now submitted their plans and move forward?

Mr. METCALFE. Well, we are going to be following the Executive

order itself. To use a phrase that was used earlier, that is basically

a blueprint of what is done, and the next step under the Executive

order is for the Attorney General to file that report to the President. Frankly, that is our focus at this point. That is not so very

far away. But I think one could reasonably imagine that we would

be doing very logical things in the future entirely consistent with,

I think, the very good things that we have done thus far this year.

Mr. PLATTS. I appreciate your Department’s efforts, and I do

think the more transparency, the more incentive, because with that

transparency and sunshine shooting in, the more people feel

obliged to try to bring their scores or in this case, their compliance

times, up.

Mr. METCALFE. Absolutely, and we believe in transparency about

transparency as well.

Mr. PLATTS. Exactly.

I yield to the ranking member, Mr. Towns.

Mr. TOWNS. Thank you, Mr. Chairman.

121

Let me just go back to you, Mr. Metcalfe. What is the Justice Department doing in its oversight of agencies that have a higher percentage of FOIA requests that end up in litigation? Does the Justice Department support agencies waiting until a lawsuit takes

place? What is your position on all this?

Mr. METCALFE. OK, I think for purposes of clarity, Congressman

Towns, I probably should divide that question into its two basic

parts. As to the first part, we do handle litigation. We are very

much aware of what happens in litigation and agencies that are

sued and the results of those, and we certainly factor that into our

training programs.

For example, just one concrete example, I gave a presentation

just last week for several hours, together with the Deputy Director

of OIP, and two of the cases that I emphasized right there were

cases in which two agencies—they will remain nameless today, but

their initials are—no, I am kidding. I won’t say that.

Two agencies that were sued in that case——

Mr. TOWNS. I missed the initials.

Mr. METCALFE. You know, this mic, it is just going on and off.

It is in and out. That is the problem.

But we made very specific use of those two cases involving those

two agencies, Congressman Towns, to help educate other agencies

as well.

As to the second part of your question, I think it was a little bit

different, and please help me to remember it correctly.

Mr. TOWNS. Actually, do you wait until a lawsuit is filed before

releasing information?

Mr. METCALFE. Yes, pardon me. Strike that last word, please.

Yes, I now remember your question. No, agencies in general or generally speaking do not do that and ought not to do that as a practice whatsoever. I think that what is underlying your question has

to do with the question of attorneys’ fees and specifically how

things work under the Supreme Court’s Buckhannon decision, and

that is a decision that does have an effect on the award of attorneys’ fees, but we make it very clear to agencies that they ought

not to do that. As a matter of fact, one of the cases that I alluded

to earlier had that aspect to it, where the judge criticized an agency for doing something that could be perceived as what you mention in your question, Congressman Towns, and we held that agency up a negative model. We said: Don’t do that; that is not the way

to do things.

Mr. TOWNS. I want to just sort of followup on something I think

Mr. Gutknecht asked earlier. I just want to get clarification of it.

Now if it is a congressional request, that is handled differently?

Did you say that? I want to make certain I understand that.

Mr. METCALFE. Yes, I think it is accurate across the board for

virtually all, if not all, Federal agencies to say they have certain

channels for handling certain things. One channel or track is the

FOIA, and the FOIA track handled by FOIA personnel, and almost

all agencies have congressional Affairs Offices that work very hard

on handling congressional inquiries. They are tracked or channeled

in different ways. Sometimes a congressional inquiry can verge on

the subject matter of a FOIA request or even be about the handling

122

of a FOIA request, but their handling on different tracks is distinct.

Mr. TOWNS. What is DOJ doing to ensure that agencies with significant classified information, such as DHS or DOD, are complying

with the requirements of FOIA and EFOIA for commonly requested

information?

Mr. METCALFE. OK, there are multiple elements built into your

question, Congressman Towns. Let me say first, and this is going

to sound like a hypertechnical point, and I apologize if it strikes

you that way. We do a lot to encourage agency compliance, but we

don’t have the absolute authority to ensure anything. So I am just

picking up on that word first.

But with respect to classified information and whether information is withheld or not, we work with agencies to make sure that

they understand how that part of the FOIA works, Exemption 1,

and a big part of our guide to the FOIA deals with all the case law

discussing the standards and requirements under Exemption 1.

The third part of your question, however, goes to an additional

element of the FOIA, I believe. I think you were talking about frequently requested records.

Mr. TOWNS. Right.

Mr. METCALFE. That specifically is a reference to a provision of

the FOIA that was added in 1996, Subsection A(2)(d) that basically

says that if an agency has received a FOIA request and processed

records and then either envisions, based upon its own experience,

that there will be multiple requests in the future or in fact receives

those multiple requests in the future for that same information, it

has an automatic obligation to make that information affirmatively

available in the reading room. If it is information generated or created by the agency rather after November 1, 1996, that has to be

produced electronically in the electronic reading room.

So the best way I can integrate those two elements together to

answer your question in sum is to say if information is found not

to be classified, sort of around the edges, if you will, of classification parameters, and if it is requested multiply, then we strongly

encourage agencies, and they are doing a better and better job all

the time, to meet that obligation under the 1996 amendments and

to get that information out on their electronic FOIA Web sites.

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

and I yield back.

Mr. METCALFE. Thank you.

Mr. PLATTS. Thank you, Mr. Towns.

Mr. Gutknecht.

Mr. GUTKNECHT. Thank you, Mr. Chairman.

I want to come back to some of the points that have been raised

by the panel that spoke first, and let me just put it into my own

view. There are three or four things that I think we need to revisit

as a Congress. Let me just throw them out and I would like to get

your responses to them.

First is the issue of whether or not we should have some kind

of, the term I would use, sunset upon any exemptions, the idea of

making each agency defend on some kind of a regular basis whether or not they should be exempted from provisions of FOIA.

123

Second is clarifying the burden of proof. It is something that I

think most of us thought we had already resolved, but apparently

there are still some differences about that, whether or not that burden should be on the Government or the person or groups that are

requesting information.

I mentioned the mugshot issue. I think that needs to be clarified,

and we ought to have uniform policy throughout the United States

relative to the availability to the media, particularly of convicted

felons. I understand here in the United States, we believe people

are innocent until found guilt, and I would even acknowledge that

we don’t need to necessarily require that those be released if someone is simply charged with a crime.

Finally, an issue that has been raised, and I would like to get

your response to this, is whether or not maybe it is time to have

some kind of an office of ombudsman where there is some kind of

a fair or honest broker in this whole process because, well, I won’t

even get into because.

I would just like your response on what you think about a sunset, the burden of proof. We have already talked about the mugshot

issue, so I don’t know if you want to respond to that. Then finally,

the issue of some kind of an ombudsman. I would appreciate your

responses to those.

Thank you.

Mr. METCALFE. Well, Congressman Gutknecht, I suppose I have

to divide those four into a couple of categories at least to give you

the best answer that I am capable of giving today, and the first is

that the sunset provision and the mugshot issue are those that

were posed, if I understand you correctly, in light of possible perspective legislation. That is not something that I am in a position

to speak to today. That is something that is sort of hypothetical.

I know witnesses say they don’t like to answer hypotheticals all the

time, but that is something maybe for a later day. I don’t want to,

by that answer, convey lack of caring about those issues. It is just

that it is a little bit premature at this point.

With respect to the burden of proof, though, I think I can speak

to that directly, again not in a legislative context because there

might be a misconception there, and help me please if I misunderstand you or you misunderstand me. The law is very clear, I mean

crystal clear, that the burden of proof is on the Government. That

is something very distinct, not entirely unique but very distinct

about FOIA and FOIA litigation. When we go to court, a FOIA requestor, now a plaintiff before the judge, can sit back and just say:

Listen, I made a FOIA request. I am not happy with the response

I got. That is it.

Then the Government has the burden of proof in all respects

going forward. So that is something that is very solid as a matter

of FOIA statutory law and case law and practice as well.

Finally, with the respect to the ombudsman, that might be in

that first category because obviously that does connect to legislation that I think was introduced that we are not really discussing

here today, but I can point out that it is a fact that the Office of

Information and Privacy has an ombudsman function. We have had

it for many years. I don’t want to mislead the subcommittee by

suggesting it is a very large scale activity, but that very same anVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
124

nual report that I mentioned earlier in response to Congressman

Towns contains, at the end, a discussion of our ombudsman activity

and also contains a citation to some publications where we have

talked about that. So it is a fact that we have done that on an admittedly relatively small scale in our office for many, many years.

Ms. KOONTZ. Most of these areas, I cannot comment on because

I think our work hasn’t been directed in these particular areas, but

I did want to comment for a moment on the office of ombudsman,

at least something related. What we have seen in our previous

work, when we were particularly looking at fee-related sorts of

issues, is that one particular agency that we studied, that communication between the agency and with the FOIA requestor was not

always as clear as it needed to be. One of the things that we

walked away from that study with was that agencies needed to say

more about why they were making decisions and why they came

out the way that they did because we found that in the absence of

information, individuals filled in the blanks themselves and came

up with all kinds of actual erroneous conclusions.

So it would seem to me that related to this, one of the things

that we probably need to do, which I think also isn’t contained in

the Executive order, and that is to improve the way we communicate with requestors, so that they actually understand the basis

for what the decisions are.

Mr. GUTKNECHT. Thank you, Mr. Chairman.

Mr. PLATTS. Thank you, Mr. Gutknecht.

I want to followup, Mr. Metcalfe, on that burden of proof issue.

I don’t have the exact language. I couldn’t find it quickly in front

of me. With the issuance of the Ashcroft memo that rescinded the

Reno position, and I will paraphrase. Under Reno, it was find a

way to comply and to make the information available, and Attorney

General Ashcroft took a different approach where it was emphasizing the use of exemptions to deny the request. Am I paraphrasing

that wrongly? If not, it seems that memo that is standing as of

today is really trying to undercut the integrity of the right to know

and the Government’s right to explain why it shouldn’t be released.

Mr. METCALFE. I do disagree with you very strongly, Chairman

Platts, that the Ashcroft memo undercuts the integrity of anything,

including FOIA administration. I can tell you that I am intimately

familiar with both of those memoranda, and I think part of what

you said does reflect a misconception or an over-generalization or

an overstatement.

You did use the phrase, different approach. I think, undeniably,

the two memoranda take a somewhat different approach and that

they are different in tone to be sure, but they cannot alter the burden of proof under the FOIA, which is built right into the statute

itself. Again, having been very closely involved in the processes

leading up to and including the issuance of those memoranda, I

think they are best looked at—I have stated this publicly in many

forums—as largely a matter of difference in tone and approach to

the FOIA.

Mr. PLATTS. How would you summarize the Ashcroft memo of its

intent? If I am paraphrasing it inaccurately, how would you paraphrase its use of exceptions and how it is giving guidance?

125

Mr. METCALFE. I think the best paraphrase of it, Chairman

Platts, would be to focus on one word in particular that appears

over and over in the memo, and that is careful. The Ashcroft

memorandum encourages agencies or urges Agencies to be careful

in their FOIA decisionmaking. By that, I mean to say in their consideration of FOIA exemptions, whether the exemptions, pardon

me, whether the interest involved in particular records are cognizable under exemption and whether the information should be

withheld.

Also, I should hasten to add, it does speak of the concept of discretionary disclosure. It does not advocate discretionary disclosure

in the way that the Reno memorandum did. That is a change in

policy to some degree but not to a complete degree, and it is not

the radical change that has been portrayed in many quarters since

late 2001 or early 2002.

Mr. PLATTS. All right, I have learned as one of five kids that we

sometimes have to agree to disagree in a respectful way because

I do see it differently, especially in the tone. I would acknowledge

and you are very much correct in saying it doesn’t change the statutory burden.

Mr. METCALFE. I, in turn, concur with your characterization of

tone, Chairman Platts. Absolutely, we are on exactly the same page

in that respect.

Mr. PLATTS. Yes, and that is, I guess, part of the concern. The

intent, I think, of the Freedom of Information Act from the beginning was this is a Government of, for, and by the people, and when

in doubt, be open with the exceptions of true National Security and

personal privacy. I thought it was unfortunate that memo was

issued and changed that tone from the top. We will have to disagree on maybe how it was interpreted.

Mr. METCALFE. If I could respectfully just add one more relatively small point or maybe not so small point with Ms. Koontz

sitting here, on my side of the disagreement and that is GAO, not

long after the issuance of the Ashcroft memorandum, undertook a

study, I believe at the request of the predecessor of this subcommittee, if I am correct, and Ms. Koontz directed that study. It concluded that as a practical matter, the import or effect of it was not

nearly as it had been portrayed or suggested in many quarters. Is

that a fair characterization, would you say, Ms. Koontz?

Ms. KOONTZ. I should probably clarify what we did at the request

of Senator Leahy. Early after the Ashcroft memo was issued, we

undertook a survey of FOIA personnel to determine what they

thought the effect of this would be on discretionary disclosures, and

at the time, 48 percent of the FOIA officers said that they didn’t

think that it would increase, decrease the likelihood of discretionary disclosures. However, there was a full third of the FOIA officers who did think that it was likely to decrease discretionary disclosures. Now that is entirely based on their views and that there

was no way for us to verify that as a matter of fact.

Mr. METCALFE. I have to concur, Chairman Platts, that there certainly is an impact with respect to discretionary disclosures. Undeniably, although it is mentioned as a concept, as a basic point of

practice in the Ashcroft memo, we are not advocating that under

126

the Ashcroft memo nearly as much as we did under the Reno

memo. That is absolutely so.

Mr. PLATTS. Thank you.

A final quick question and then if Mr. Towns has any other questions, and then we will need to move to our third panel.

That is just, Mr. Metcalfe, you mentioned to a previous question

from Mr. Towns about DHS and getting them to reply and what

your response was when they didn’t meet the deadline. You stated

that through staff in your office, there were communications of

where is it or why haven’t you complied. Can you capture what was

the main basis for their explanation? Why didn’t they? Why did it

take 5 weeks past a Presidentially set deadline for them to comply?

Mr. METCALFE. OK, I will try to answer that in two particular

respects, Chairman Platts. The first thing is I should clarify that

with DHS in particular, that was not something that was handled

at the staff level in my office. I personally made a series of calls

to a series of individuals at a very high level, basically the highest

levels that one might imagine at DHS.

Mr. PLATTS. Are you saying to the Secretary’s Office of the Chief

FOIA Office?

Mr. METCALFE. I am reluctant to go into detail about that, but

I have no basis to disagree with your characterization. [Laughter.]

I wanted to make very sure that this was well understood at

DHS. By that time, I thought there was a darn good chance, not

a certainty but a darn good chance that there would be a hearing

at the end of July, and that is part of the landscape to be sure.

As to what their circumstances were, I am reluctant to go into

any detail that they disclosed to me because I think it might be

more appropriate to ask DHS, and by that, I mean to say, and I

don’t mean to imply that there is some terrible thing that I know,

that I am concerned about blurting out to their disadvantage. Far

from the contrary, I can assure you in general that there was very

positive, constructive, high level attention being paid to this, and

that if you heard from DHS directly, you probably would reach the

same conclusion.

Mr. PLATTS. The final followup to that, and this certainly is asking your opinion because you only can give that with the question

I am going to ask. If this hearing had not been scheduled for today,

do you think that plan would have been submitted on Monday or

would we still be waiting for it?

Mr. METCALFE. I would hesitate to hazard a guess as to that. I

would be speculating even if it were educated speculation.

Mr. PLATTS. Understood, it is a speculation, but what would be

your best speculation you could offer?

Mr. METCALFE. My best answer is I am genuinely not certain.

Mr. PLATTS. OK, I appreciate it.

Ms. Koontz, any thoughts on the issue, the fact that it was 5

weeks until we got it, 5 weeks late, and it happened to arrive or

be issued, not public yet, 2 days before this hearing on this issue?

Ms. KOONTZ. I think without the actions of the Department of

Justice, we wouldn’t have a DHS plan today, and I think it is probably important for you to know that the report we did receive essentially states that they believe that their plan as it exists right

127

now is adequate and that they are going to reissue it anyway in

3 months.

Mr. PLATTS. And they are going to come back in 3 months, right.

So I read that to be that while we have to issue something because

there is a hearing, but we are telling you up front it is really not

a plan that we can act on.

Ms. KOONTZ. Right.

Mr. PLATTS. Really, from the fulfilling the intent of the requirement, we really don’t have a compliance.

Ms. KOONTZ. That would be correct.

Mr. METCALFE. If I add just one thing briefly, Chairman Platts,

and again I am not suggesting that I am here carrying the water,

so to speak, for DHS.

Mr. PLATTS. I want to say, sincerely, your insights and your

frankness have been very much appreciated. Your taking your responsibility such as Ms. Koontz referenced and your getting engaged personally with DHS, I think is admirable and we are glad

for it.

Mr. METCALFE. I appreciate your comments. Frankly, I think it

is characteristic of how we have taken our efforts very seriously

throughout the implementation of the Executive order, including

suggesting 27 possible areas for inclusion, not that they are mandatory, to use a word you used earlier, far from it.

But there is one additional fact that I can throw out just for the

record because I am aware of it. The position that holds responsibility over FOIA administration within DHS’ structure is the

Chief Privacy Officer. That person also has oversight, if you will,

over FOIA as well, and the current incumbent in that position was

named last Friday and took office just Monday morning. I wished

him well among other things when I spoke with him Monday morning.

Mr. PLATTS. How long was it vacant, the position, do you know?

Mr. METCALFE. I can provide a little bit of information. The first

Chief Privacy Officer at DHS, Nuala O’Connor Kelly, I believe resigned or left Government, I am going to say about the second

week of September of last year. Her Deputy, Maureen Cooney, was

acting in that position, and I know Maureen announced not so very

long ago that she would be leaving the Department sometime soon,

and it was not long after that announcement that Hugo Teufel,

who I had known when he was at the Department of the Interior

in the Solicitor’s Office, was named to replace Maureen.

Mr. PLATTS. The reason I ask is I appreciate that the current officer is new, but this is something that they had 6 months knowledge that it was due in June. So the acting, whoever was there

being responsible for fulfilling an Executive order, there were persons there in a position that should have been working to fulfill the

requirements of the Presidential order.

Mr. METCALFE. Chairman Platts, you sound just as I do when I

am on the phone in a situation like that. As a matter of fact, I dare

say you could very amply do my job with exactly that approach.

Mr. PLATTS. I am not sure about that, especially because what

perhaps you need a little more of is mandatory compliance authority versus advisory authority. Maybe it would make herding the

128

sheep a little easier if you could tell them what to do rather than

as far as encouraging them what to do.

Mr. METCALFE. Not to abuse your metaphor, but I think sometimes it is more like herding cats.

Mr. PLATTS. I can imagine. [Laughter.]

Mr. Towns, did you have anything else?

Mr. TOWNS. I just have one question I would like to ask Ms.

Koontz. Now that the Executive order has been issued and agencies

have begun to comply, what are the areas of FOIA that will need

addressing that we will need to?

Ms. KOONTZ. There are many, many areas that agencies have

identified for improvement, and that includes in reducing the backlog, in streamlining FOIA processing, in doing more information

dissemination particularly via the Web, and then in solving all the

sort of underlying issues that are barriers to better processing,

faster processing, and better customer service.

Mr. TOWNS. Is there anything we need to do on this side? I am

talking about Members of Congress.

Ms. KOONTZ. I think that you need to continue your oversight

over what the agencies are doing, what Justice is doing, and I am

hoping to supply you a more detailed report sometime soon.

Mr. TOWNS. We are looking forward to receiving it.

Ms. KOONTZ. Thank you.

Mr. TOWNS. Thank you.

On that note, I yield back, Mr. Chairman.

Mr. PLATTS. Thank you, Mr. Towns.

To both of our witnesses, again, our sincere thanks for your testimony here today and again your work day in and day out, very important work in both the oversight roles at the GAO and the day

to day efforts at Justice. We are grateful for your efforts and look

forward to continuing to work with you and your offices on this important issue of ensuring open and accessible Government.

Mr. METCALFE. Chairman Platts, if I could just raise on final

point, that is particularly in light of I know there was some question or misconception at the hearing last year on May 11, 2005. I

plan to stay for the third panel and to be here during the entirety

of this hearing, and if there is any further question that you or any

other member of the subcommittee, I would be more than glad to

attempt my best to respond to that question.

Mr. PLATTS. We appreciate that one more indication of the serious approach you take to your responsibilities. Thank you.

Mr. METCALFE. Thank you, sir.

Mr. PLATTS. We will stand in recess, again, for about 2 minutes

while we reset for the third panel.

[Recess.]

Mr. PLATTS. The subcommittee is reconvened.

We are pleased, on our third panel, to have Ms. Tonda Rush. I

am getting ahead of myself here, sorry.

We are all set? OK.

We reconvene with our third panel. We are pleased to have Ms.

Tonda Rush, public policy director, National Newspaper Association, and Ms. Patrice McDermott, the director of

OpenTheGovernment.Org. We appreciate your written testimony.

129

If we could have you both stand, we will swear you in and then

begin with your testimonies.

[Witnesses sworn.]

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

that both witnesses affirmed the oath.

Ms. Rush, we will begin with you. We do appreciate your written

testimonies as well as the background information that came with

the testimonies. We will try to stay to roughly that 5 minutes, but

if you need to go over a little bit, we understand.

Ms. Rush.

STATEMENTS OF TONDA RUSH, PUBLIC POLICY DIRECTOR,

NATIONAL NEWSPAPER ASSOCIATION; AND PATRICE

MCDERMOTT, DIRECTOR, OPENTHEGOVERNMENT.ORG

STATEMENT OF TONDA RUSH

Ms. RUSH. Good afternoon, Mr. Chairman and Ranking Member

Towns. I appreciate the opportunity to be here today.

I am Tonda Rush. I am the Director of Public Policy for the National Newspaper Association. We are a 2,500 member organization

of community newspapers, weeklies and dailies. The organization

is 121 years old. Our members are mostly family owned newspapers. They rely upon public records to inform their local communities.

I appear here also on behalf of the Sunshine in Government Initiative. It is an informal network of nine media organizations

which are listed in our written statement.

My purpose here today is threefold: first, to support the subcommittee and the good work it has already done in examining the

Freedom of Information Act and to note the contributions of Congressmen Smith, Waxman, and Sherman as well as Senators

Cornyn and Leahy for their legislative proposals to improve the

act; No. 2, to commend the progress created by Executive Order

13392 but to note that it does not supplant the need for legislation;

and No. 3, to suggest elements in the Open Government Act, H.R.

867, that we believe this subcommittee should consider.

The Freedom of Information Act is too often met with indifference and sometimes outright hostility. If journalists find it difficult

to use, a concerned citizen must find it nearly impossible. The free

flow of information upon which our democracy rests depends upon

the proper working of this law. Still, it is used by the persistent

and by the determined. We detail in our written testimony, a sample of some news stories based upon FOIA research.

Congress has often revisited this archive and restated the importance of FOIA. At the same time, this subcommittee has already

recognized the problems with FOIA FE backlogs, unwarranted denials, and paucity of alternatives to litigation as a means of resolving disputes.

Mr. Chairman, the President’s Executive Order 13392 spurred

the agencies to consider improvements. It was unquestionably a

positive step forward, but the EO did not go far enough. It did not

provide concrete incentives for speedier processing, nor did it discourage unwarranted denials.

130

It also, perhaps most importantly, did not specifically charge the

head of the agencies with treating FOIA requestors with the same

seriousness that agencies treat their customary stakeholders. If a

FOIA requestor was accorded the status, for example, that a pharmaceutical company receives from the FDA or a consulate staff

would receive from the State Department, it would go a long way

to increase our citizens’ trust in their stakeholder role in democracy. Still, it was an improvement. It will lead to a better flow of

information.

However, Mr. Chairman, even a perfect Executive order could

not substitute for action by Congress. Since 1955, when the early

drafters of FOIA began their work, it was the member’s of the people’s House who recognized that meaningful access to the people’s

records would have to be guaranteed by Congress. This body has

revisited FOIA periodically since 1966, and each time it rediscovers

the importance of the congressional role.

That role is critical here today, and we would like to point to

some key elements in H.R. 867 for this subcommittee to explore.

First, the bill proposes an ombudsman. This is an issue of keen interest to me because most of our members are small businesses.

Even if the Federal Court appeals process worked perfectly, and it

does not, very few news rooms can afford to use this remedy. The

result is the general public finds Washington ever more distant and

strange as their local media cannot adequately keep them informed

as we need our voters to be. We believe it is time for Congress to

consider a path of alternative dispute resolution.

The Office of Information and Privacy has carried out a portion

of this role admirably over the past few decades, but we believe

Congress should examine the role models provided by the States

such as Connecticut, New York, and Virginia where public offices

exist to help members of the public to deal with records custodians.

Some States like Texas use the Attorney General’s Office in that

role. Like our Justice Department, the Attorneys General are in a

good position to insist upon compliance with law, but when the mediator and the Government’s lawyer are the same, the Justice Department must serve two masters. In Texas, that problem is addressed somewhat through two separate divisions within the Attorney General’s Office, but in Washington, that solution does not

seem as viable. A solution tailored to the Federal structure is needed, and we hope to work with the subcommittee to design it.

Second, Congress clearly needs to restore requestors’ access to attorneys’ fees. The footdragging of agencies and denying records

right up to the courthouse door was once discouraged by fee awards

if the requestor substantially prevailed in the settlement. Since the

2001 Supreme Court decision tightened standard for those awards,

the agencies once again believe they have the leverage to deny requests until the very last minute without incurring fee awards.

We also wish that Congress would put teeth into the deadlines

in the statute. Delays are the largest category of complaint. They

have always been so. A mediator could help some of that. Funding

and training of agency staff will help some of that, but outright defiance of time limits will still occur and H.R. 867 address delays

through forfeiture of most exemption claims.

131

Finally, Mr. Chairman, the existence of the Exemption (b)(3) in

the statute has created an open flank in the law that has bedeviled

the Oversight Committee since day one. There are many ways to

create exemptions by reference, and yet there is no central referral

system or approval process to keep the FOIA from be nibbled to

death by (b)(3)’s. H.R. 867 proposes one solution. There are other

possibilities, but we believe a solution must be found.

Other parts of the bill that are important to our organizations include a system for tracking numbers for requests, better reporting

of agency performance, and an overall heightened attention to the

public’s right to know.

We look forward to working with this subcommittee, Mr. Chairman, and exploring the legislation further and helping the subcommittee to carry out its oversight duties in the Freedom of Information Act.

Thank you.

[The prepared statement of Ms. Rush follows:]

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

Mr. PLATTS. Thank you, Ms. Rush. We appreciate, again, your

testimony on behalf of your members and especially as a former

newspaper boy myself.

Ms. RUSH. I am glad to hear that, Mr. Chairman.

Mr. PLATTS. One of my early jobs as a teen, I had a Sunday route

in my neighborhood. In fact, when I ran for the Statehouse, that

neighborhood was one in which I must have done an OK job because I did very well in that neighborhood at the ballot box for my

first campaign. I have fond memories of delivering the paper and

actually remain a diehard reader of newspapers. I begin each

morning in my District with being able to commute daily to Washington from Pennsylvania. I rarely leave the house without reading

my morning paper, local morning paper, from front to back.

Ms. RUSH. I am glad to hear that.

Mr. PLATTS. I try to do the evening one. I maybe don’t read the

evening one as thoroughly because it is usually about midnight

when I get to it. We are glad to have the success of our newspapers

throughout the country.

Again, thanks for your testimony.

Ms. RUSH. Thank you, Mr. Chairman.

Mr. PLATTS. Ms. McDermott.

STATEMENT OF PATRICE MCDERMOTT

Ms. MCDERMOTT. Thank you, Mr. Chairman and Ranking Member Towns for the opportunity to speak today on the agency’s responses to Executive Order 13392, and to the broader issues you

raised in your letter of invitation to participate in this hearing.

My name is Patrice McDermott. I am the Director of

OpenTheGovernment.Org, a coalition of journalists, government,

consumer and good government groups, environmentalists, labor,

and others united to make Federal Government a more open place

in order to make us safer, strengthen public trust in Government,

and support our democratic principles.

As you and the members of the subcommittee are clearly aware,

July 4th was the 40th Anniversary of the Freedom of Information

Act, and that it was created to ‘‘ensure an informed citizenry vital

to the functioning of a democratic society, needed to check against

corruption, and to hold the Governors accountable to the governed.’’

In recognition of this important milestone in the history of disclosure of agency information, OpenTheGovernment.Org in collaboration with 12 organizations including Ms. Rush’s and many individuals within them undertook a look at the sample of the plans submitted by Federal agencies in response to the Executive order.

That report is titled FOIA’s 40th Anniversary: Agencies Respond to

the President’s Call for Improved Disclosure of Information, and I

request that the report and the two attachments submitted with it

be made part of the hearing record.

Mr. PLATTS. Without objection.

Ms. MCDERMOTT. Thank you.

For the purposes of this hearing, I want to focus on two of the

improvement areas listed by the Department of Justice in its implementation guidance. These two are numbers one and two: affirmative disclosure, posting frequently requested records, policy

157

manuals, policy manuals and FAQs on Web site, and two, proactive

disclosure on Web of publicly available information.

These improvement areas seem to me to be the ones that have

the most impact on the ability of the general public to understand

what an agency does and what kind of information it creates. They

give us an opportunity to discuss questions you raised in your letter, and they are illustrative of an ongoing problem confounding efforts to institute procedural reforms to FOIA. These are problems

that have been identified several times today, the lack of enforcement and thus the ramifications for agency heads when reforms

are ignored.

In response to your first question in your letter of invitation, I

would say that the public’s right to know what its Federal Government is doing and what is being done in the name of the public

through the Government and those to whom it delegates authority

and responsibility are fundamental to the proper functioning of our

form of government. I agree with James Madison’s famous statement that a people who intend to govern themselves must arm

themselves with the power that knowledge gives. I fear that the

public is being disarmed by actions in the executive branch, some

of them sanctioned by the Congress, that serve to restrict and diminish the public’s access to information by and about our Government.

In response then to your second question, whether I think the

Federal Government is currently providing requestors with the

most responsible disclosure possible under FOIA, I would say no,

although I have to admit I am not entirely sure what the phrase,

responsible disclosure, means.

The Freedom of Information Act is a key component in the

public’s right to have access to such information, but it has traditionally been primarily a reactive component. The 1996 EFOIA

amendments were in part intended by Congress as a step toward

changing the passive stance of Federal agencies when it comes to

disclosing records and information about records. These required,

these amendments required among other provisions, that a new

category of records which we have already heard discussed today,

repeatedly requested records be made available to the public online. Importantly, it is not up to the agency to decide if it is interested in disseminating the information. It depends solely on whether outsiders submit multiple requests for the information or the

agency anticipates those requests.

In my written testimony, I note studies done between 1997 and

2002, including the GAO studies, indicating that while agencies

were making progress and making material required by EFOIA

available online, not all the required materials were yet available.

According to the GAO, the situation ‘‘appears to reflect a lack of

adequate attention and continuing review by agency officials to ensure that these materials are available.’’

Turning to the narrative commentary provided by our reviewers

on affirmative disclosure and proactive dissemination, what is most

striking to me is the future-oriented language used to describe

what most of the agencies plan to do in these areas. Bear in mind

that we are almost 10 years out from the passage of the 1996

amendments and over 9 years beyond the point at which most of

158

the requirements set out therein were supposed to have been met,

and yet repeatedly in the narratives, we find that the agencies will

meet these statutory requirements with a promise date often being

mid-2007. The lack of serious implementation of the 10 year old

amendments to FOIA is indicative of one of the serious problems

with any procedural reforms to FOIA. There is no enforcement

mechanism provided and no repercussions for ignoring these requirements.

In my estimation, given the responses in these two areas of even

the agencies with some responsibility for the implementation of

FOIA, which would be the Department of Justice and OMB, the

Executive order will likely have minimal effect on the Federal Government’s approach to providing information under FOIA. Similar

conclusions can be drawn from the table attached to our report.

What can Congress do? The easy and hard answer is to appropriate funds specifically targeted for prompting, for promoting

prompt disclosure of Government information that is appropriate

for such disclosure. Many ideas have been floated in our access

community as to how to do that, and we would be pleased to meet

with you and your staff to discuss them.

A second opportunity for Congress is to pass the bipartisan Open

Government Act. While it is not a panacea for all of our concerns

with the implementation of FOIA, it is a large step in the direction

of meaningful and accountable procedural reforms. H.R. 1620 in

the House and H.R. 2331 are examples of other legislation that advances the public’s right to know.

The third thing Congress can do is conduct frequent oversight

and hold agencies and those with oversight responsibility in the executive branch accountable. We appreciate the intention of the

House Government Reform Committee and this Congress and this

subcommittee in particular to FOIA and the difficulties encountered by the public in attempting to exercise its right to know and

to gain access held by and for the Federal Government. Indeed, Mr.

Chairman, this hearing you held in this committee in May of last

year identified and documented many of those difficulties.

More is needed, however. Until there is a clear, tangible reason

to pay attention and meet obligations, it is a logical, if regrettable,

use of resources to ignore those mandates that have no repercussions. There is no followup, no meaningful followup built into the

Executive order. It is up to Congress, and it is appropriately your

responsibility. The staff and partners of OpenTheGovernment.Org

look forward to continuing to work with you to improve and

strengthen the public’s access to Federal Government information.

I will be happy to answer any questions you may have. Thank

you.

[The prepared statement of Ms. McDermott follows:]

159

160

161

162

163

164

165

166

167

168

Mr. PLATTS. Thank you, Ms. McDermott. Again, our thanks for

both your written testimonies and your oral testimonies here.

I want to maybe start the questions again with just a broad

issue. Clearly, the support of both of you here and who you represent for the legislative proposals and going further. But looking

at specifically the Executive order and where we have come in now

the last 7 months since it was signed, what would you highlight as

the most significant improvement or change you have seen in response to the Executive order, and are there any specific examples

of a FOIA request that you are aware of through your own efforts

or those you work with that you think has been improved because

of the Executive order having been issued?

Ms. MCDERMOTT. I will defer to Ms. Rush because I don’t have

any information.

Ms. RUSH. I think the fact that the Executive order created sunlight on the process was by itself important.

There are two important components of making the FOIA work

right. One is the efficient management of it, which is the purview

of the executive branch, and the other is the legislative mandate

which is the purview of the Congress.

I think you can’t really omit either of those and expect the law

to work properly. The fact that the Executive order asked the agencies to look at their processes and come up with specific milestones

was a positive step. Some of the plans were very, very specific. The

Defense Department, for example, issued, in a manner that I have

come to expect from that agency in compliance with FOIA, very

specific dates, very specific and measurable objectives, filed the

plan on time, and suggested some things that ran from as simply

as moving the office to a place where it could be seen to trying to

make the software work better. Several of the agencies did that

sort of thing.

I have noticed over the years that the agencies have gone from

learning how to redact documents, for example, from putting a

magic marker over the words, where you could hold the sheet of

paper up and read through them, to putting a magic marker on

first and then photocopying, so that you couldn’t read through

them. Now the agencies are talking about doing training on scanning documents in and trying to do redaction through text editors.

The process itself is great, and I think it was important. It was

very welcome, given the climate we have been dealing with. I don’t

think it will, it can come close to substituting for the work of the

subcommittee, however, and I have not seen any concrete results

yet. I think it is probably a little to soon.

Mr. PLATTS. OK.

Ms. MCDERMOTT. I agree that the process itself is very important, and I think that one of the facts that it did is to raise FOIA

within the agencies, raise the visibility of it within the agencies. As

I stated in my written testimony, I think FOIA officers and records

officers as well are often the stepchildren in Government agencies.

Their work is not respected until the agency gets sued. So I think

it has done that very important service of raising the visibility.

And I think it has highlighted, for many of us outside of the

agencies, some of the real and very concrete problems that the

agencies face. Not being able to afford a scanner or photocopier,

169

those sorts of things are really pretty appalling. But in terms of actual real life impacts on requestors, I can’t speak to any.

Mr. PLATTS. Ms. Rush, you referenced both in your written testimony and in your answer to the question, DOD as an example of

a plan that seems to be well thought out and with timeframes and

goals that they are going to pursue. Given that DHS, in essence,

has not really submitted a plan and they are acknowledging they

don’t have a plan that they are going to act—they are going to revise it and resubmit it—would the DOD plan be a good example,

especially given that DHS and DOD have similar sensitivities with

some of the issues they deal with and the operations they are engaged in, that DHS should be looking at DOD as an example of

what you think is a good approach to the FOIA plan?

Ms. RUSH. That is an interesting question, Mr. Chairman. I

think the response of DHS underlines one of the key seams, I

think, of our beliefs here, and that is it is the oversight of Congress

that makes things happen. To the extent that you got a plan was

because you were having a hearing. So we welcome that part of it.

Over the 25 or so years that I have worked on access in Washington, I have learned to appreciate the culture in the Defense Department for compliance. Sometimes they don’t tell you much, but

they don’t tell you on time. For the most part, most of the agencies

within the Defense Department, and there is some inconsistency

within the Pentagon, do try to meet the deadlines. They do try to

comply. They do try to follow the orders. They do listen very carefully to what Mr. Metcalfe gives them as guidance. To the extent

that the culture believes in efficient operation of the statute, I

think it has set a model for the agencies, and I would commend it

to the extent that the culture works hard at making information

available in the public interest.

I think we might have some disagreements with policy interpretations, but again as far as the Executive order, it is the President’s responsibility to make the trains run on time, and I think

the Executive order tried to do that.

Mr. PLATTS. Mr. Towns.

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

by first thanking both of you for your testimony.

I guess I want to start with you, Ms. Rush, in reference to you

indicated that legislation is still needed. Are there specific kinds of

things that you think we should try and put into a bill?

Ms. RUSH. There certainly are, Mr. Town, and I appreciate that

question. We have been very supportive of H.R. 867. We know that

there are some parts of it probably needs some fleshing out still,

and I think the bill sponsors agree with that.

If I were picking two that I would ask you to focus on, the two

I would choose would be to pursue the ombudsman concept. Particularly for the reporters of the newspapers I represent, who can

be small staffs, going to Federal Court is never going to be a good

answer. It is too long. It is too time consuming. There is lost opportunity while they spend time on it themselves. Even if they get

their attorneys’ fees back, it is not practical. We have seen the

States come up with some good models that I think the Federal

Government could explore and should explore at this point, particuVerDate 11-MAY-2000 15:23 Oct 27, 2008 Jkt 000000 PO 00000 Frm 00173 Fmt 6633 Sfmt 6633 C:\DOCS\44767.TXT KATIE PsN: KATIE
170

larly since we have had some experience with how this, with how

the enforcement part of this act works.

The second one is the issue about the (b)(3) exemptions. I know

this subcommittee has looked at a number of them that have been

proposed in this Congress. We have worked with many of you and

your staffs on those.

Congress needs to present a solution to have some way to have

these proposals vetted before the committee that oversees the Freedom of Information Act. It has been a problem for years. It has

been one that never quite been solved. Frankly, I think as you have

experienced in some of the work that you have done and the chairman has done, often when you find the bill sponsors willing to sit

down and talk to you about how the Freedom of Information Act

really works, they find to their great surprise that there are already exemptions and a process to deal with the concerns that they

were raising. I think that trying to make that process work right

is the role of the subcommittee, and we would really support some

continued dialog on a solution here.

Mr. TOWNS. Thank you very much.

Ms. McDermott, you mentioned the lack of enforcement. Do you

have some specific kinds of things that you think should be considered that are not being considered?

Ms. MCDERMOTT. Well, yes.

Mr. TOWNS. I know you mentioned prompt disclosure.

Ms. MCDERMOTT. I think the problem has been that, while the

Department of Justice is given certain responsibilities and they do

meet them very well, as Mr. Metcalfe said, they don’t have, they

are not given statutory responsibility for enforcing FOIA, nor is the

Office of Management and Budget. In my testimony, I use their responses on the first, those two disclosure items as exemplary or

non-exemplary.

I think that the approach perhaps that is taken in 867, the Office

of Government Information Service, there needs to some entity in

the executive branch. Certainly, Congress needs to do oversight,

and that is a given, ongoing and firm oversight, but there needs to

be some entity in the executive branch that has, outside of the

agencies themselves, responsibility for ensuring compliance.

I think the best model that we have seen so far is this one in

867 and in 394 in the Senate, this office in the Administrative Office of the United States that would be a body that could do audits,

that could ensure compliance, could issue reports. You know, we

would hope it would have some subpoena authority and a way to

actually force agencies to comply with timely disclosure, with getting information up on their Web sites, with all of the things that

required by the law. But there has to be some entity whose sole

responsibility that is.

Mr. TOWNS. Let me thank both of you for your testimony.

Mr. Chairman, on that note, I yield back.

Mr. PLATTS. Thank you, Mr. Towns.

Apparently, our series of votes will be, they think, in about the

next 10 minutes. So let me try to get in a couple more questions

here before we break.

I guess I want to followup first. It is really an extension of what

Mr. Towns just asked. Ms. Rush, you really focused on as far as

171

priority, and the ombudsman clearly won. I think that kind of goes

in line with Senator Cornyn when he talked about ensuring compliance, that we don’t have to go to court, that we have a better compliance and that results in more timeliness and addresses some of

the other issues.

On the other ones, the issue of broadening exceptions to the policy, the fact that there is often not a timely response or it varies

from sometimes very good but sometimes very bad, the very extreme example of 1999 still being an open case, the fact that aren’t

really incentives or consequences in place, the attorneys’ fees issue

because of the 2001 court case of those, if you are going to have

to compromise to move legislation, whether it is at the community

level or the floor level, which of those would be least important,

meaning you would see—really, Ms. McDermott, both of you—that

you would be most willing to say, well, that is something we could

work on another day if we had to, to get these other aspects of the

bill or bills through the House and considered by the Senate and

ultimately to the President?

What do you think is least important in that give and take?

Ms. RUSH. It is hard to give anything away in that process because there are so many things.

Mr. PLATTS. I understand.

Ms. RUSH. There are so many things that we need to think

about.

Mr. PLATTS. I share the belief. I never want to give away, but

sometimes you have to.

Ms. RUSH. Let me just say this. I think a number of the things

that the bill tries to get at in terms of efficiency and efficiency in

a cost-conscious way also for the Federal Government through the

tracking numbers and the report processes and some of the things

that the bill contemplates. I think if there were a more effective alternative dispute process, some of those things might melt away,

frankly.

It is tempting to see this ombudsman as somebody that kind of

jumps into the agencies and finds the records and makes the agency respond, but when you see this happen as a practical matter, at

the State level particularly, very often the person that functions

there works just as much with the requestor to try to get the request to some more concrete, manageable terms, so that the agency

can really put its hands on the records, review them promptly, and

get an answer. I think sometimes with the complex requests, that

may be one of the problems. As counsel to news media organizations, I have often suggested to reporters when they want to write

a letter that says please send me all your files on fill in the blank,

that I may be on Medicare before they ever get an answer, and

that is not practical.

Not all requestors have access to offices like ours. Certainly, the

Reporters Committee for Freedom of the Press does dozens and

dozens of these in a week. But what happens to the member of the

general public? Who talks to them? Who helps them how to figure

out how to find their way through this labyrinth that is our Government?

172

I would start there, frankly, Mr. Chairman, and I would give

that process a chance to work a little bit and see what we learn

from it. I think it has some real fertile ground for progress.

Mr. PLATTS. Ms. McDermott.

Ms. MCDERMOTT. I would agree. I think, you know, there are two

tracks to take, and this bill takes both of them. One is a punitive

track that imposes costs on the agencies, taking exemptions, for instance, if they don’t get their disclosure made on a timely basis.

And then there is this assistive track, both for the public and for

the agencies. Although I firmly believe that there is greater need

for enforcement because the agencies do fail to comply with many

aspects of this, I think that probably in the near term, the assistive

track is more likely to bear fruit for the public and for the agencies

themselves and therefore for our Government than the punitive

track, and it is more likely, I think, to be able to move forward.

So if I had to jettison something, it would probably be the more

punitive aspects, although I am, I think that the attorneys’ fees is

really a problem that needs to be addressed very seriously because

it is a perverse incentive to the agencies.

Mr. PLATTS. If you combine the two, the ombudsman and the facilitating of the alternative dispute approach, and you reverse the

consequences of that 2001 decision on attorneys’ fees, the hope is

then that you don’t need to have the punitive.

Ms. MCDERMOTT. One hopes.

Mr. PLATTS. Do this or else this happens. You really get to that

timeliness, that compliance.

Ms. RUSH. That would be the hope.

Mr. PLATTS. Maybe you need to come back and do something

more, but the hope is that would do it.

Ms. RUSH. I think it would be worth giving that kind of a process

a chance to work and see what impact it has. Clearly, the Federal

Court process has been frustrating. Congress, when it passed the

law, didn’t realize how long it would take to get through Federal

Courts, and in 1974, made these cases, put these cases on the expedited track. Unfortunately, Congress came along later and put

some other things on expedited track. Now everything is expedited,

and so nothing is expedited. So that hasn’t worked all that well.

I don’t want to suggest, however, that we think that Federal Appeals Court processes shouldn’t continue to also be available. There

will be those cases where there are questions of law that need to

be tested, and that there will be requestors who have the means

and the interest and the time to get a response to that.

I think that is not, certainly, it is not the typical news media request. The typical news media request, I think, would happen more

frequently. I think we would have better quality reporting in your

local media, which I know most Members of Congress would welcome on issues that deal with Washington, if there was a process

that worked faster and got a more concrete result.

Ms. MCDERMOTT. The one thing that I would caution is that in

instituting something like this at a Federal level, the volume that

this office would be likely to have to deal with could be staggering.

Mr. PLATTS. That was my followup. What would you envision

from a percentage of requests made, even a guesstimate you would

173

want to make of how many would end up with an ombudsman involved?

Ms. RUSH. I would, if I were designing it, and I have to tell you

we have thought about this a long time, and we don’t have a process even fixed in our own minds that we are perfectly confident of,

but I think that I wouldn’t have the mediator or the ombudsman,

whatever you chose to call it, into the process until there had been

at least an agency denial or a flagrant disregard for the time limits. I think that would cutoff some of them. It could be that some

of the cases that are purely Privacy Act type requests would never

get to that point. A lot of these are I would like my records, please,

to the VA or whoever.

I think there are some ways to design it, certainly in the early

years, so that you could try to sort of stem the flow a little bit and

give it a fair chance to see how it works.

Ms. MCDERMOTT. I think the corollary to this is the issue that

I raised in my written testimony, and that is the failure of the

agencies to implement some of the aspects of the EFOIA amendments. I think that if agencies were to comply, which they are still

not doing as far as I know, with the requirements to put their

record schedules up online, so that the public can learn what kinds

of records an agency creates and what offices are likely to have

them, that would cut down on the over-requesting and help people

to hone in their request. It might also increase requests because

people would realize what kinds of records there are, but I think

that with this move toward a mediator or ombudsman or arbitrator, there has to be some further work with the agencies to make

their own information more transparent and more accessible to the

public.

Mr. PLATTS. The final question I have before we break is we have

talked about a number of States, and our colleagues in the first

panel referenced some. Again, I am putting you on the spot. If you

had to pick one State’s approach—Connecticut, New York, whatever it may be—which would it be of those that you are familiar

with?

Ms. MCDERMOTT. I don’t have enough information.

Ms. RUSH. So far from what I have seen, Virginia’s process seems

to be working well. The process is New York has worked well. The

one issue, I think——

Mr. PLATTS. You are starting to sound like a politician here.

Ms. RUSH. Yes, I know.

Mr. PLATTS. Virginia and New York, get Connecticut in there.

Ms. RUSH. Like my clients say, I want an attorney with one

hand, so I don’t get on the first hand and then on the second hand.

None of them are perfect. None of them are perfect, and I think

New York probably is the one I am most familiar with. The thing

that is imperfect about that is that individual serves at the pleasure of the Governor, and he has said many times that he only gets

along doing what he is doing because he has irritated everyone almost equally. I am not sure that in an environment like Washington that you would want to make that open flank, so that you had

an ombudsman that had to please the executive branch. The whole

idea of this is to have a check and balance.

174

So I would look at trying to set up something that worked more

like the Virginia, I think model, if I could, and I would try to create

it in such a way that there was some direct feedback to Congress.

Mr. PLATTS. Mr. Towns, did you have anything else?

Mr. TOWNS. I have no further questions.

Mr. PLATTS. I want to thank both of you for your presentations.

Your written presentations certainly gave us a wealth of information and issues to think about as we move forward and in your participation here in the panel as well.

We certainly want to continue moving forward in the oversight

role and as we look at actually trying to see how we can advance

the cause of some legislative efforts to tighten up the wise efforts

of our predecessors 40 years ago. So we appreciate your testimony

and will continue to work with you and your organizations as well

as the other presenters today as we go forward.

We will keep the record open for 2 weeks for any additional information and, again, my thanks to you for participation.

This hearing stands adjourned.

[Whereupon, at 4:25 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

191

192

193

194

195

Æ