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

73–178 PDF 2012

S. HRG. 112–296 

THE FREEDOM OF INFORMATION ACT: ENSURING 

TRANSPARENCY AND ACCOUNTABILITY IN THE 

DIGITAL AGE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MARCH 15, 2011 

Serial No. J–112–10 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 2 

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

prepared statement .......................................................................................... 95 

WITNESSES 

Cohen, Sarah, Knight Professor of the Practice of Journalism and Public 

Policy, Sanford School of Public Policy, Duke University, Durham, North 

Carolina, on behalf of the Sunshine in Government Initiative ........................ 22 

Fitton, Thomas, President, Judicial Watch, Washington, DC ............................. 24 

Nisbet, Miriam, Director, Office of Government Information Services, National Archives and Records Administration, College Park, Maryland ........... 7 

Podesta, John D., President and Chief Executive, Center for American 

Progress Action Fund, Washington, DC ............................................................. 20 

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

Justice, Washington, DC ..................................................................................... 5 

QUESTIONS AND ANSWERS 

Responses of Sarah Cohen to questions submitted by Senator Klobuchar ......... 35 

Responses of Thomas Fitton to questions submitted by Senator Klobuchar ...... 36 

Responses of Miriam Nisbet to questions submitted by Senators Grassley 

and Leahy ............................................................................................................. 38 

Responses of John D. Podesta to questions submitted by Senator Klobuchar ... 48 

Responses of Melanie Pustay to questions submitted by Senators Grassley 

and Leahy ............................................................................................................. 51 

SUBMISSIONS FOR THE RECORD 

Adams, Christian, Attorney, Voting Section, Civil Rights Division, Department of Justice, Washington, DC, statement and attachment ........................ 63 

Associated Press, Washington, DC, article ............................................................ 74 

Cohen, Sarah, Knight Professor of the Practice of Journalism and Public 

Policy, Sanford School of Public Policy, Duke University, Durham, North 

Carolina, on behalf of the Sunshine in Government Initiative, statement ..... 75 

Fitton, Thomas, President, Judicial Watch, Washington, DC, statement .......... 86 

Galovich, Al, Co-Director, Acting, Office of Information Programs and Services 

for the Department of Justice, letter and attachments .................................... 91 

National Security Archive, 2011 Knight Open Government Survey, report ...... 97 

Nisbet, Miriam, Director, Office of Government Information Services, National Archives and Records Administration, College Park, Maryland, statement ...................................................................................................................... 120 

O’Brien, Jack, Vice President, Ancient Order of Hibernians in America, Upper 

Marlboro, Maryland, April 12, 2011, letter ........................................................ 126 

Podesta, John D., President and Chief Executive, Center for American 

Progress Action Fund, Washington, DC, statement .......................................... 127 

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

Justice, Washington, DC, statement and court cases ....................................... 133 

Washington Post, Washington, DC: 

March 14, 2011, Associated Press, article ...................................................... 154 

March 13, 2011, Associated Press, article ...................................................... 156 

March 14, 2011, Ed O’Keefe, article ............................................................... 158 

(1) 

THE FREEDOM OF INFORMATION ACT: ENSURING TRANSPARENCY AND ACCOUNTABILITY IN THE DIGITAL AGE 

TUESDAY, MARCH 15, 2011 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:16 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Franken, Grassley, and 

Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Normally we would have started at 10, but Senator Grassley and I were both at the Supreme 

Court for the Judicial Conference, and so we appreciate everybody’s 

willingness to start at 10:15. 

This is an important hearing on FOIA, or the Freedom of Information Act. When Congress enacted FOIA more than 40 years ago, 

this watershed law ushered in a new and unprecedented era of 

transparency in Government. Four decades later, FOIA continues 

to give citizens access to the inner workings of their Government 

and to guarantee the right to know for all Americans. 

The right to know is a cornerstone of our democracy. Without it, 

citizens are kept in the dark about key policy decisions that directly affect their lives. In the digital age, FOIA remains an indispensable tool in protecting the people’s right to know. 

As Americans from every corner of our Nation commemorate 

Sunshine Week, they have many good reasons to cheer. I am 

pleased that one of President Obama’s first official acts when he 

took office was to issue a historic new directive to strengthen 

FOIA. Just yesterday, the Department of Justice launched the new 

FOIA.gov website. It compiles all of the Department’s FOIA data 

in one online location. 

The Congress has made good progress in strengthening FOIA. 

Last year, the Senate unanimously passed the Faster FOIA Act. 

That is a bill that Senator Cornyn of Texas and I introduced to establish a bipartisan commission to study FOIA and to make recommendations to Congress on ways to further improve FOIA. We 

will reintroduce this bill later this week. 

2 

The reason Senator Cornyn and I have joined together for years 

now on strengthening FOIA, we go on the assumption that no matter whether you have a Democratic or Republican administration, 

whoever is there is going to be glad to talk about the things that 

go right, not quite so eager to talk about things that might not 

have gone right. And it helps everybody, no matter whether it is 

a Republican or Democratic administration, to know that the people being represented have a chance to find out what is happening. 

There is reason to cheer the recent unanimous decision by the 

Supreme Court in Federal Communications Commission v. AT&T, concluding that corporations do not have a right of personal privacy 

under the Freedom of Information Act. That, again, makes our 

Government more open and accountable to the American people. 

The Government is still not as open and accessible as I would like 

to see it, and many of us would. 

Implementation of FOIA continues to be hampered by the increasing use of exemptions—especially under section (b)(3) of 

FOIA. 

Last year, Senators Grassley, Cornyn, and I worked together on 

a bipartisan basis to repeal an overly broad FOIA exemption in the 

historic Wall Street reform bill. 

It is also essential that the American people have a FOIA law 

that is not only strengthened by reform, but properly enforced. A 

report released yesterday by the National Security Archive found 

that while there has been some progress in implementing the 

President’s FOIA reforms, only about half of the Federal agencies 

surveyed have taken steps to update their FOIA guidance and assess their FOIA resources. And FOIA delays continue to be a problem; six-year-old delays are far too much. 

I am pleased that we have representatives from the Department 

of Justice and the Office of Government Information Services, and 

I will continue to work with Senator Cornyn, Senator Grassley, and 

others because this is something we should all join on. It is important for the country. 

Senator Grassley. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. This is a very important hearing, and thank 

you for it and particularly coming during this week that is called 

‘‘Sunshine Week’’ observed annually, seemingly coinciding with 

James Madison’s birthday, Founding Father of our checks-and-balances system of Government. Open government and transparency 

are more than just pleasant-sounding words. They are essential to 

maintain our democratic form of Government. 

FOIA is based on the belief that citizens have a right to know 

what their Government is doing and that the burden is on the Government to prove otherwise. It requires that our Government operate on the presumption of disclosure. So it is important to talk 

about the Freedom of Information Act and the need for American 

citizens to be able to easily obtain information from their Government. 

Transparency is not negotiable, even in a Republican administration, as far as I am concerned. Although it is Sunshine Week, I am 

3 

disheartened, continuing the practices of previous Presidents, Republican or Democrat, that we do not have the openness that we 

should. And contrary to President Obama’s hopeful pronouncements when he took office more than 2 years ago, the sun still is 

not shining on the executive branch. 

Given my experiences in trying to pry information out of the executive branch and based on investigations by the media, I am disappointed that President Obama’s statements about transparency 

are not being put into practice. Federal agencies under the control 

of his political appointees have been more aggressive than ever in 

withholding information. There is a real disconnect between the 

President’s words and the actions of his political appointees. 

On his first full day in office, President Obama issued a memorandum on FOIA to heads of all executive agencies: ‘‘The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and 

failures might be revealed, or because of speculative and abstract 

fears.’’ 

But further quoting his instruction to executive agencies, ‘‘Adopt 

a presumption in favor of disclosure’’—and that is very important 

to remember those words. ‘‘Adopt a presumption in favor of disclosure in order to renew their commitment to the principles embodied in FOIA and to usher in a new era of open government.’’ 

Unfortunately, based upon his administration’s actions, it appears that in the eyes of the President’s political appointees, his 

hopeful words about open government and transparency are mere 

words. It is not just a matter of disappointment in the administration’s performance in complying with requests for information, and 

it is not even about bureaucratic business as usual. It is more, and 

far worse. 

Perhaps the most dramatic and troubling departure from the 

President’s vow to usher in a new era of open government are revealed in e-mails from the Department of Homeland Security obtained by the Associated Press in July last year. A report by Ted 

Bridis of AP uncovered that for at least a year Homeland Security 

was diverting requests for records to senior political advisers who 

delayed the release of records they considered politically sensitive. 

The review often delayed the release of information for weeks beyond the usual wait. 

Specifically, in July of 2009, the Department of Homeland Security introduced a directive requiring a wide range of information to 

be vetted by political appointees, no matter who requested it. Career employees were ordered to provide Secretary Napolitano’s political staff with information about the people who asked for 

records, such as where they lived, whether they were private citizens or reporters, and about the organizations they worked for. If 

a Member of Congress sought such documents, employees were told 

to specify Democrat or Republican. 

The Homeland Security directive laid out an expansive view of 

the sort of documents that required political vetting. Anything that 

touched on controversial or sensitive subjects that could attract 

media attention or that dealt with meetings involving prominent 

business and elected leaders had go to political appointees. 

4 

I was very disturbed by the Associated Press report, which came 

out July 21st last year. Accordingly, in August, Representative Issa 

and I wrote the Inspectors General of 29 agencies and asked them 

to review whether their agencies were taking steps to limit responses to Freedom of Information Act requests from lawmakers, 

journalists, activist groups, and watchdog organizations. The deadline for responding to my letter passed about 5 months ago. To 

date, only 11 of the 29 agencies have responded. 

The lack of a response from so many agencies sends a disturbing 

message. The leadership of the Federal agencies do not seem to 

consider the political screening of requests under the Freedom of 

Information Act to be a matter worthy of their attention. 

My concern about the lack of responses to my letter was well 

founded. It now appears that the Department of Justice may have 

also politicized compliance with the Freedom of Information Act. 

On February 10, 2011, blog—I have got three more pages, and I 

am laying out a case here. If you do not want me to, I will put it 

in the record. 

Chairman LEAHY. No, go ahead and finish. 

Senator GRASSLEY. On February 10, 2011, blog-posting Christian 

Adams, a former attorney in the Voting Section of the Civil Rights 

Division at the Justice Department discussed this disturbing development in detail. Specifically, Adams’ review of the Voting Section’s 

logs for Freedom of Information Act requests revealed that requests 

from liberals or politically connected civil rights groups are often 

given the same-day or expedited turnaround. By contrast, requests 

from conservatives or Republicans faced long delays, if they are fulfilled at all. Adams reported that as of August 2010 the logs show 

a pattern of political screening and politicizing compliance. Overall, 

the data in the logs obtained by Adams reveal priorities of the Civil 

Rights Division: transparency for insiders and friends, stonewalling 

for critics, political appointees, and Republicans. 

So there is a disturbing contradiction between President Obama’s 

words and the actions of his political appointees. When the agencies I am reviewing get defensive and refuse to respond to my requests, it makes me wonder what they are trying to hide. 

Throughout my career I have actively conducted oversight of the 

executive branch regardless of who controls Congress or who controls the White House. It is our constitutional duty. It is about 

basic good government, and accountability, not party politics or ideology. 

Open government is not a Republican or Democrat issue. It has 

to be—and our Chairman has highlighted that—a bipartisan approach. Our differences on policy issues and the workings of Government must be debated before our citizens in the open. I know 

that you know this, Mr. Chairman. I know how hard you worked 

with Senator Cornyn on the Open Government Act of 2007, which 

amended FOIA. Mr. Chairman, I hope that you are as disturbed as 

I am by these reports and by the Attorney General’s approach to 

them. I hope that you will work with me to investigate these allegations. 

I also hope that more in the media will investigate these disturbing reports. I am disappointed that there has not been more 

media coverage of the Associated Press uncovering the political 

5 

screening of the Freedom of Information Act requests by the Department of Homeland Security and Christian Adams’ article about 

similar conduct at DOJ. 

I am also disappointed that there has not been more coverage of 

Representative Issa’s efforts to investigate Homeland Security’s political screening of information requests. This conduct is not just 

political decisionmaking; it is the politically motivated withholding 

of information about the very conduct of our Government from our 

citizens. In particular, it’s the withholding of information about the 

Obama administration’s controversial policies and about its mistakes. 

We cannot ignore or minimize this type of conduct. It is our job 

in Congress to help ensure that agencies are more transparent and 

responsive to the Government we represent. I view this hearing as 

a chance to have the facts come out and as a chance to examine 

some of the disturbing practices which have been reported on. In 

other words, as I sum it up, except for national security and intelligence information—and that is about 1 percent of the total Federal Government’s business—99 percent of what the Government 

does is the public’s business and it ought to be public. 

Thank you very much. 

Chairman LEAHY. Well, I agree with the Senator. When requests 

are made, we ought to get answers. I think of the thousands of requests made during the Bush administration that have yet to be 

answered, never were answered there. 

Senator GRASSLEY. For this Senator, too. 

Chairman LEAHY. Yes, and the hundreds of thousands of e-mails 

that they still say they cannot find from that time. I would not 

want to suggest that the blame just falls on one side. We have had 

those requests during the—we had the Lyme disease one—still trying to find requests during the last administration. But what I 

want to know is how we make it work best. 

Melanie Pustay is the Director of the Office of Information Policy 

at the Department of Justice. She has the statutory responsibility 

for directing agency compliance with the Freedom of Information 

Act. Before becoming the office’s Director, she served for 8 years as 

the Deputy Director. She has extensive experience in FOIA litigation, received the Attorney General’s Distinguished Service Award 

for her role in providing legal advice, guidance, and assistance on 

records disclosure issues. She earned her law degree from American University Washington College of Law, and she was on the 

Law Review there. 

We put your whole statement in the record, of course, but please 

in the time available go ahead and tell us whatever you would like. 

STATEMENT OF MELANIE PUSTAY, DIRECTOR, OFFICE OF INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. PUSTAY. Thank you. Good morning, Chairman Leahy and 

Ranking Member Grassley and members of the Committee. I am 

pleased to be here this morning to address the subject of the Freedom of Information Act and the efforts of the Department of Justice to ensure that President Obama’s memorandum on the FOIA, 

as well as Attorney General Holder’s FOIA Guidelines, are indeed 

6 

fully implemented across the Government. As the lead Federal 

agency responsible for proper implementation of the FOIA, we at 

the Department of Justice are strongly committed to encouraging 

compliance with the Act by all agencies and to promoting open government. 

As you know, the Attorney General issued his new FOIA Guidelines during Sunshine Week 2 years ago. The Attorney General 

called on agency Chief FOIA Officers to review their agencies’ 

FOIA administration each year and then to report to the Department of Justice on the steps they have taken to achieve improved 

transparency. These reports show that agencies have made real 

progress in applying the presumption of openness, improving the 

efficiency of their FOIA processes, reducing their backlogs, expanding their use of technology, and making more information available 

proactively. Now, while there is always work that remains to be 

done, for the second year in a row agencies have shown that they 

are improving FOIA compliance and increasing transparency. 

For example, across the Government there was an overall reduction in the FOIA backlog for the second year in a row. There was 

also an increase in the number of requests where records were released in full. And I am particularly proud to report that the Department of Justice for the second straight year in a row increased 

the numbers of responses where records were released in full and 

were released in part. 

My office, the Office of Information Policy, provided extensive 

governmentwide training on the new guidelines to agencies, and we 

have issued written guidelines to assist agencies. We have also 

reached out to the public and the requester community. We will be 

holding our first ever FOIA requester agency town hall meeting, 

which will bring together FOIA personnel and frequent FOIA requesters. 

Yesterday, the first day of Sunshine Week, the Attorney General 

approved new updated FOIA regulations for the Department. 

These regulations will serve as a model for all agencies to use in 

similarly updating their own FOIA regulations. And then most significantly, yesterday we launched our newest transparency initiative, which is our website called FOIA.gov. 

Combining the Department’s leadership and policy roles in the 

FOIA, the FOIA.gov website shines a light on the operation of the 

FOIA itself. The website has two distinct elements. First, it serves 

as a visual report card of agency compliance with the FOIA. All the 

detailed statistics that are contained in agency Annual FOIA Reports are displayed graphically, and the website will be able to be 

searched and sorted and comparisons made between agencies and 

over time. We will also be reporting key measurements of agency 

compliance, and it is our hope that FOIA.gov will help create an 

incentive for agencies to improve their FOIA performance. The site 

will also provide a link to each agency’s FOIA website which will 

allow the public to readily locate records that are already posted 

on agency websites. 

Now, in addition, the FOIA.gov website will serve a second and 

equally important function. It will be a place where the public can 

be educated about how the FOIA process works, where to make requests, and what to expect through the FOIA process. Explanatory 

7 

videos are embedded into the site. There is a section addressing 

frequently asked questions. There is a glossary of FOIA terms. A 

wealth of contact information is given for each agency. Significant 

FOIA releases are also posted on the site to give the public examples of the types of records that are made available through the 

law. 

The Department of Justice envisions that this website will be a 

one-stop shop both for reviewing agency compliance with the FOIA 

and for learning about how the FOIA process works. We plan to 

continually add features and updates to the site, and we welcome 

comments from both the public and from agencies. 

Now, looking ahead, OIP will be assessing where agencies stand 

in their ongoing efforts to improve compliance with the FOIA. We 

will be providing additional training to agencies. We will continue 

our outreach to requesters. 

As I stated earlier, the Department is committed to achieving the 

new era of open government that the President envisions. We have 

made progress in the past 2 years toward that goal, but OIP will 

continue to work diligently to help agencies achieve even greater 

transparency in the years ahead. 

In closing, the Department of Justice looks forward to working 

together with the Committee on all matters pertaining to the 

FOIA, and I would be pleased to answer any questions that you or 

any other member of the Committee might have. Thank you. 

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

for the record.] 

Chairman LEAHY. Thank you very much. 

We will also hear, before we go to questions, from Director Miriam Nisbet, and we have been joined by Senator Cornyn. Did you 

notice? 

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

Information Services at the National Archives and Records Administration. Before that she served as the Director of the Information 

Society Division for UNESCO. Her extensive information policy experience was previous work as legislative counsel for the American 

Library Association and the Deputy Director of the Office of Information Policy for DOJ. She earned her bachelor’s degree and law 

degree from the University of North Carolina. 

Welcome back. 

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

AND RECORDS ADMINISTRATION, COLLEGE PARK, MARYLAND 

Ms. NISBET. Thank you, Mr. Chairman. Good morning to you, 

Senator Grassley, and members of the committee. I really appreciate the opportunity to be here with you during Sunshine Week 

to talk about my office, which is an important part of the freedom 

of information and open government initiatives of the Federal Government. 

As you know, the Office of Government Information Services, or 

OGIS, as we refer to it, has been hard at work carrying out its statutory mission since opening in September 2009. While we have 

worked to resolve disputes under the Freedom of Information Act 

8 

and to review agency FOIA policy, procedures, and compliance, we 

have realized that much of our work falls under the designation 

that Congress gave us as the ‘‘FOIA ombudsman.’’ As an ombudsman, OGIS acts as a confidential and informal information resource, communications channel, and complaint handler. OGIS 

supports and advocates for the FOIA process and does not champion requesters over agencies or vice versa. We encourage a more 

collaborative, accessible FOIA process for everyone. 

We are off to quite a start. In our first 18 months, we heard from 

requesters from 43 States, the District of Columbia, Puerto Rico, 

and 12 foreign countries. We answered questions, provided information, listened to complaints, and tried to help in any way we 

could. For the more substantive disputes, we facilitated discussions 

between the parties, both over the phone and in person, and 

worked to help them find mutually acceptable solutions. 

The statutory term ‘‘mediation services,’’ which you all are aware 

of as authors of that language, includes the following: formal mediation, facilitation, and ombuds services. OGIS continues to offer 

formal mediation as an option for resolving disputes, but so far we 

have not yet had a case in which the parties agreed to participate 

in that process. However, we have found that the less formal method of facilitation by OGIS staff members provides a very similar 

process, and parties are more willing to engage with OGIS and 

with each other without the perceived formality of mediation. 

Since September 2009, OGIS has closed 541 cases, 124 of them 

true disputes between FOIA requesters and agencies, such as disputes over fees charged and FOIA exemptions as applied. As a 

facilitator for the FOIA process to work as it is intended, we were 

not calling balls or strikes, but letting the parties try to work matters out with our assistance in an effort to avoid litigation. In 

three-quarters of the disputes we handled, we believe that the parties walked away satisfied and that OGIS involvement helped to 

resolve their disputes. 

A realization we quickly faced is that defining success is a challenge. The final result of our process is not both parties getting exactly what they want—sometimes not even close—but if we are 

able to help them in some way, by providing more information or 

by helping them understand the other party’s interests, we believe 

that we have provided a valuable service. When OGIS first set out, 

we spoke of changing a culture or mindset from one of reacting to 

a dispute in an adversarial setting to one of actively managing conflict in a neutral setting. 

Because we have had so many requests for mediation services, 

we have also been challenged in setting up a comprehensive review 

strategy for that prong of our statutory mission. 

For now, the review plan includes providing agencies with FOIA 

best practices, using existing data to address topics such as backlogs or referrals and consultations, and to offer what we call collaborative reviews alongside willing agencies. 

We are also offering training for FOIA professionals in dispute 

resolution skills to help them to prevent or resolve disputes at the 

earliest possible time. 

OGIS has a unique perspective on the way FOIA works. As an 

entity that works side by side with agency FOIA professionals to 

9 

improve the process from within and that also works closely with 

requesters on the outside to address shortcomings, we have seen 

the importance of building relationships—and trust—among the 

members of the FOIA community. It is an exciting process, and 

while we have just gotten started and see it as a long-term effort, 

we are pleased to see so many positive results in the short term 

and to see that our process works. 

Thank you. Please let me know if you have questions or if we can 

help your constituents. 

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

for the record.] 

Chairman LEAHY. Thank you very much. 

Let me ask this: We talked about it, but I have worked for years 

on a bipartisan basis to reinvigorate FOIA, and I am pleased by 

the support we have gotten for that. I was also pleased when in 

March 2009, when Attorney General Holder issued new FOIA 

guidelines, it, I believe rightfully, restored the presumption of disclosure. But the report released yesterday by the National Security 

Archives found only half of the Federal agencies surveyed have 

taken concrete steps to update their FOIA policies and procedures 

in light of this guidance. They are doing what they did in past administrations. 

So, Ms. Pustay, what is the Department doing to help keep the 

President’s promise of a more transparent Government? 

Ms. PUSTAY. To respond to the National Security Archive report 

issue first, the conclusions that they reached in that report are incomplete because the agencies were asked—all 97 agencies subject 

to the FOIA were specifically asked by the Department of Justice 

to address the issues of training guidance and staffing, which were 

the two factors that were looked at by the National Security Archive report. And what happened with the Archive report is they 

took the absence of a response or the absence of documents to 

mean that the agency had done nothing in those factors. But if you 

look at their Chief FOIA Officer reports, they have addressed those 

very factors. And so, for example, an agency might not have created its own guidance for implementing Attorney General Holder’s 

guidelines, but what they have done is used the Department of 

Justice’s guidance that is already posted and has been posted since 

the guidelines first came out. 

Chairman LEAHY. Well, let us go to some of the agencies—in fact, 

12 of them had pending FOIA requests that go way back. They 

were not answered during the Bush administration, still are not 

being answered. They go back 6 years. What do you do about that? 

I mean, that seems somewhat excessive to me. 

Ms. PUSTAY. Right. Of course—— 

Chairman LEAHY. Especially if you had to make decisions in your 

own life based on those answers. 

Ms. PUSTAY. The age of the oldest request across the Government 

definitely continues to be too old. There is no doubt about that. And 

that has been a specific area that we have focused on. The Department of Justice first required agencies to report on their ten oldest 

requests as a way of giving more accountability and transparency 

to the issue of the age. So it is specifically something that we are 

asking agencies to address when they look at their backlogs. We 

10 

ask them to measure it both in terms of numbers of requests and 

age of requests because we see them as two distinct aspects of 

backlog reduction. 

I am happy to say, though, that for the second straight year in 

a row, agencies have reduced their backlogs. So since implementation of our new guidelines, we are seeing progress. Backlogs are 

going down. The age of the oldest is improving. So we are on the 

right track. 

Chairman LEAHY. Well, let me ask on that, Ms. Nisbet, we have 

the Office of Government Information Services, OGIS, trying to 

provide cost-effective alternatives for resolving FOIA disputes because, as you know, sometimes a dispute can just drag on and the 

cost gets to much and so nothing ever happens. Can OGIS actually 

help reduce the current backlog that Ms. Pustay has talked about? 

Ms. NISBET. Senator Leahy, we believe that we can. I am not 

sure that we are able today to show in measurements exactly how 

we are doing that. But I can tell you that the cases that come to 

us—and we have now had, as of last week, just shy of 600. About 

one in five do continue to be problems with delays in response. But 

what we are finding that we can do with that, with the help of the 

agencies and working with the requesters, is sometimes to narrow 

the focus of the request, help with the search, resolve issues pretty 

quickly in terms of fees, and move things along that way. 

Chairman LEAHY. I will go back to Ms. Pustay. Last week, the 

Supreme Court held in Milner v. Navy that the Government may 

not rely upon FOIA Exemption 2 to withhold Government records 

that are unrelated to personnel or human resources matters. They 

rejected the concept of the so-called high two, the exemption in 

FOIA established in the D.C. Circuit in the Crooker case. 

Ms. PUSTAY. The Crooker case. 

Chairman LEAHY. It was 25 or 30 years ago. 

Ms. PUSTAY. Right. 1981. 

Chairman LEAHY. To some of us, it seems like only yesterday. 

[Laughter.] 

Chairman LEAHY. Some have suggested that Congress should 

enact legislation to allow the Government to continue to withhold 

high two information response through Milner. So what is the Department’s position on that? And are you going to propose legislation to Congress? 

Ms. PUSTAY. We are considering the impact of the Milner decision. As you can imagine, it is just brand new, and so I am not prepared yet to say what we are going to propose. But we are obviously carefully looking at the impact of the decision. 

Chairman LEAHY. Well, as you are looking at it, please keep in 

touch with myself, Senator Cornyn, and Senator Grassley. 

Ms. PUSTAY. I appreciate that. 

Chairman LEAHY. I yield. 

Senator GRASSLEY. Thank you. 

Going back to some statements I made in my opening comments, 

it would seem obvious that the political vetting policy at the Department of Homeland Security that was uncovered by AP violates 

both the President’s and the Attorney General’s orders set forth in 

their memos. A simple question, first to you, Ms. Pustay, and then 

to Ms. Nisbet. Would you agree? 

11 

Ms. PUSTAY. I am sorry. I did not—— 

Senator GRASSLEY. OK. The question is: Would you agree whether what the Associated Press uncovered about the Department of 

Homeland Security and their political vetting process violates both 

the President’s and the Attorney General’s orders set forth in 

memos from 2009? 

Ms. PUSTAY. Certainly, if the statements in the article are true, 

of course, it would be very serious and would be something that we 

would have serious concerns with, of course. 

I can tell you that the policy of the Department of Justice and 

certainly what we share with agencies and in our training with 

agencies, our one-on-one guidance, all our presentations, of course, 

is that the identity of a requester has nothing to do with the response given to the request, that the process is one that is to be 

handled by agencies without any regard for the identity of the requester in the normal course of events. Typically, FOIA professionals within an agency are career employees who handle the requests in a routine matter that does not involve or implicate any 

of the things that were mentioned in that article. 

Senator GRASSLEY. Can you say whether you agree or disagree, 

Ms. Nisbet? 

Ms. NISBET. Well, I think the issues raised are of great concern, 

and I do note that Congressman Issa is continuing to look into this 

matter, as you referred to, to find out more about it and to see 

what steps might need to be taken. 

Senator GRASSLEY. OK. Thank you. 

A March 19, 2009, memorandum by General Holder repeated 

President Obama’s hopeful pronouncements about transparency 

and stated, ‘‘Each agency must be fully accountable for the administration of the Freedom of Information Act.’’ 

So, Ms. Pustay, how are the political appointees at the Department of Homeland Security who authored and carried out the political vetting policy being held accountable for their actions? 

Ms. PUSTAY. I am really not—I do not think I am in a position 

right now to talk about the Department of Homeland Security and 

the allegations from that article. What I can say is that part of 

what the Department is doing to make real the words of accountability is connected directly with our website, our FOIA.gov 

website, where all the detailed data about how FOIA requests are 

handled is available now for all the public to see and to be able to 

compare and contrast information. 

Senator GRASSLEY. What sort of an environment would you need 

to talk about it? Or are you saying you cannot talk about it at all? 

Ms. PUSTAY. I am not in a position to talk about the Department 

of Homeland Security’s process. 

Senator GRASSLEY. OK. Is your office or any other unit in the 

Justice Department or any other unit in the Government investigating the political vetting policy at Homeland Security which 

was uncovered by Associated Press? That is simple. Either you are 

investigated it or you are not investigating it. 

Ms. PUSTAY. I am not aware of us investigating it. 

Senator GRASSLEY. OK. So then obviously the next follow-up 

question was who was conducting the investigation, but you do not 

think that there is any investigation. 

12 

The third question. On March 1, 2011, Representative Frank 

Wolf questioned General Holder about Christian Adams’ article. 

The Attorney General testified that he had looked into the issues 

and assured Congressman Wolf that there is no ideological component to how the Justice Department answers FOIA requests. So, 

would you describe for us in as much detail as possible the Justice 

Department’s investigation into the allegations made in Christian 

Adams’ article? 

Ms. PUSTAY. On that topic I can tell you that we are looking into 

the issue at the Department of Justice, and there will be a response coming to Representative Issa. 

What I also, though, can tell you, from what I know of the facts 

of those allegations, is that the article mistook different versions— 

different types of access procedures that the Civil Rights had, compared apples and oranges, if you will. The Civil Rights Division has 

multiple ways to access records separate and apart from FOIA, and 

so one of the causes of confusion or concern raised by the article 

writer was mixing those two different forms of access up. 

Again, I can tell you the policy certainly within the Department 

of Justice is that the identity of the requester has nothing to do 

with how a FOIA request is processed. 

Senator GRASSLEY. OK. My time is up. I hope I can have a second round. I guess you are in charge now. 

Senator WHITEHOUSE [presiding]. I am sure there will be no objection to a second round, although we do have a second panel as 

well. But I will leave that to the Chairman on his return. 

Thank you both for your testimony. I am interested in the extent 

to which the FOIA process might be facilitated by modern digital 

technology. There is sort of the early beginnings of a website in 

FOIA.gov., but as I understand it, it tracks the FOIA process but 

does not contain much substantive information of any kind. As 

somebody who in my State life was on the receiving end of a lot 

of FOIAs, we had to copy stuff and send it out, and then it was 

gone. And if somebody else asked the same question a week later, 

you had to go back, copy it all again and send it out again. 

Why is there not a data base that you can go and search through 

the way—why can’t you Google all the old FOIA requests? Should 

we be able to? Is there a process for getting there? And what can 

we do to accelerate that process? 

Ms. PUSTAY. It is absolutely something that agencies, are working on and certainly at the Justice Department we are very much 

working on. One of the things already that is available on the 

FOIA.gov website are links to every single FOIA website of every 

agency. So the records that each agency has already put up on 

their website are all available just by clicking on the link. So that 

is existing right now on FOIA.gov. 

We are working on a search capability that will allow the requests—a member of the public or a requester to type in a search 

term and have the technology capabilities of FOIA.gov launch a 

search through all the FOIA websites of every agency and pull up 

all the records that would match that term. So that is something 

that is actively being worked on now, and we are pretty hopeful 

that that capability will be available soon on FOIA.gov. 

13 

Senator WHITEHOUSE. I ran pretty small offices, and I do not 

think we kept the old FOIA requests once they were sent out. What 

do the Federal agencies do—— 

Ms. PUSTAY. Agencies absolutely—a common part of our guidance is to keep copies of what has been processed because, of 

course, the easiest way to process it when it comes in the second 

time is that you already have it. But more than that, we have had 

a policy for quite some—we have actually by law, once a request 

has been—once a subject matter has been requested three times, 

it is required by the FOIA itself to be posted on the agency’s 

website. 

With Attorney General Holder’s guidelines, we have expanded 

that and have been encouraging agencies at any time to think 

about records that might be of interest to the public, and to put 

them up on the website even before there is one request. 

We have certainly seen in the Chief FOIA Officer Reports that 

we have just gotten in this past week that lots of agencies are taking steps to put information up on the website that has been requested and are anticipating interest in records. So agencies are 

definitely right on board with this concept. 

Senator WHITEHOUSE. Two questions further. Does the search capacity—or when it is installed, will the search capacity reach the 

FOIA request or just the substance? Because sometimes the value 

of the FOIA answer is that a knowledgeable person has aggregated 

the information that is relevant to a particular request, and if it 

is just out there and you do not really know—if the responsiveness 

in and of itself is of some informative value. 

Ms. PUSTAY. Of course. 

Senator WHITEHOUSE. Are they just pointing things? Or is the 

original request that came in that they are responsive to also part 

of what is on the Web and what can be searched? 

Ms. PUSTAY. The answer is yes to both those things. 

Senator WHITEHOUSE. OK. 

Ms. PUSTAY. Both types of things are being posted, both types of 

things will be retrievable with our search function once we get it 

up and running. 

Senator WHITEHOUSE. OK. And is there a role for—I mean, a lot 

of this stuff ends up in Government archives one way or another. 

Is there a role for other agencies to participate in this and have the 

FOIA thing be a part of a larger Government records retrieval and 

retention system? 

Ms. PUSTAY. Well, FOIA already is obviously part of a larger system because every agency handles its own records, and every agency has a FOIA website where there are things that are required to 

be put on that website. FOIA.gov is now our new way to capture 

all of that material across the Government through one single 

website. So that is what we think is one of the real beauties of 

FOIA.gov and the educational—— 

Senator WHITEHOUSE. In my last 15 seconds, how far back are 

agencies expected to go in stuff that they have sent out in the past 

and load it onto their websites? 

Ms. PUSTAY. What we advise agencies to do is to put on their 

website information that they anticipate would be of interest to 

someone today. So that is a judgment call they make, and we have 

14 

seen really good examples of agencies thinking proactively when 

events occur and they know a request will come in, and so they will 

put the information up on their website. 

Senator WHITEHOUSE. My time has expired. Mr. Chairman, 

thank you very much. 

Chairman LEAHY [presiding.] Thank you. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

Mr. Chairman, it has been a pleasure to work with you on FOIA 

issues over the 8 years I have been in the Senate, and I am glad 

to see Ms. Nisbet here, who is the first ombudsman created by the 

Federal Government to help people who request records navigate 

the labyrinthine bureaucracy of the Federal Government to try to 

get some information. 

I know you and I both believe, Mr. Chairman, that openness and 

transparency is essential to self-government, and, frankly, I think 

we need to have a dramatic culture change here in Washington, 

D.C., about just whose records these are and to make sure that 

there are real teeth in enforcement procedures within the law that 

guarantee a reasonable request will be responded to in a reasonable time. 

Ms. Pustay, let me ask you, according to the report released 

Monday by the National Security Archive, 90 different FOIA requests, but 17 agencies were reported still working on a response 

to the request after 117 business days when the law provides for 

20 days. Can you explain what consequences there are when an 

agency fails to respond on a timely basis to a FOIA request? 

Ms. PUSTAY. The statute provides, of course, that there is a 20- 

working-day period to respond, but then the FOIA actually also 

recognizes that there are situations where agencies will need additional time to respond if they have voluminous records to process 

or have to search in a field facility, that type of thing. And so the 

idea that is built into the statute is that requesters are notified of 

the time or the estimated time for completion and given a chance 

to work out an agreed-upon time with the agency. 

Ultimately, of course, if the requester is unhappy with the delay, 

what we would certainly encourage the requester to do is to contact 

the FOIA public liaison or contact the agency official who is handling the request to find out what the delays are all about. 

Senator CORNYN. In each case where there is a FOIA request 

made, you are saying the agency must within the 20 working days 

provided by the statute provide a response, either including the 

records that were requested or a response that there are voluminous records that are going to require some time to examine and 

pull out relevant records? Is that what you are saying? 

Ms. PUSTAY. Sure. The statute itself provides—there is a standard 20-day response period, or there is an additional 10-day response period if you have those circumstances. And then also the 

statute provides that if the period of time to respond is going to be 

longer than that 30 days total, there is a process where the agency 

gives an estimate to the requester and works with the requester on 

the time. 

Senator CORNYN. And if they do not do that, what recourse does 

a citizen have? 

15 

Ms. PUSTAY. Ultimately, of course, a requester can go to court because there is constructive exhaustion built into the FOIA where, 

if the agency goes beyond the statutory time period, you are allowed as a requester to go to court. Nobody encourages that. Nobody wants to see that happen. And what we have instead is a real 

focus on having agencies work with the requester to explain why 

the delay is happening. We have 600,000 requests across the Government, so it is an incredible crush of requests that agencies are 

facing, and oftentimes just explaining that to a requester is helpful. 

Senator CORNYN. Well, what I meant earlier when I said we need 

to change the culture here in Washington, I think too often the 

agencies believe that this is a nuisance to be avoided, and they do 

not treat the requester as a customer or recognize, acknowledge the 

fact that actually the Federal Government works for the people 

who are requesting the documents. 

But, Ms. Nisbet, let me ask you in your capacity as the ombudsman, what has been your experience? I notice in this National Security Archive report, four of the agencies denied even getting the 

FOIA request, and you know and I know that saying, well, you can 

always sue the Federal Government in court, that is a hollow 

promise in many instances because people simply do not have the 

resources to do that. 

Ms. NISBET. And, indeed, I believe that was one of the strong interests of you all in setting up the Office of Government Information Services, is to have an alternative to litigation so that neither 

requesters nor agencies have to litigate over issues, particularly involving delays when the agency has not been able to give a response. 

What we are finding, though, is that, yes, delays, as I mentioned 

before, continue to be an issue. It is a legitimate reason—there are 

legitimate reasons for that, of course, because requests can be quite 

complex, records can be voluminous. Sometimes it is very difficult 

to even start a search for records in a short amount of time. But 

what is important is having some channels of communication between the requester and the agency. Requesters often are willing 

to work with the agency and, in fact, they should work with the 

agency on the scope of the request. They are understanding of 

delays if someone talks to them, explains to them, and works with 

them so that they know that someone is trying to provide that 

service that you are talking about, even if it is not going to be as 

quickly as the requester likes. 

Senator CORNYN. I know my time is up for this round, but let 

me just say that I think that was one of the most important things 

that we were able to do in the legislation, the Open Government 

Act, is to create an ombudsman that could help the requester narrow the request and to get what they want as opposed to overly 

broad requests which basically misses the target. So I think it is 

really important that we have somebody they can talk to, not an 

adversarial relationship but somebody who can help facilitate that 

and get the information in the hands of the requester on a timely 

basis. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

16 

Did you have any other questions of this panel? Because we only 

have another half-hour. 

Senator GRASSLEY. I have got hopefully three short questions. 

I already referred in my opening comments about our letter to 

the Inspectors General at 29 agencies wanting to request the extent to which requests from lawmakers, journalists, activist groups, 

and watchdog organizations were—the Inspector General was 

asked to determine the extent to which political appointees are systematically made aware of FOIA requests and their part in the decisionmaking process. We asked the Inspector General at DOJ to 

look into that. He passed it on to you, and then your response admits the Freedom of Information Act offices at the Justice Department make their political leadership aware of FOIA requests and 

‘‘seek their input’’ on responding. Your memo does not provide any 

specifics on the nature of the input from political appointees, so 

these are my questions. 

What type of input do political appointees under the Obama administration give to career employees regarding response to Freedom of Information Act requests? Then I have two follow-up questions. 

Ms. PUSTAY. To prepare that response, I did a survey of all the 

components in DOJ, and fundamentally I was completely 

unsurprised by the responses that they gave me because the practice at DOJ now is exactly how it has been for the two decades that 

I have been working at DOJ. So there was nothing unusual at all. 

Essentially, components will make the management offices of the 

Department of Justice aware of requests in their capacity as the 

managers of the Department. So it is completely appropriate, completely something that we have seen literally for the decades that 

I have been at DOJ. 

Senator GRASSLEY. Since the memo was put out in January 2009, 

have responses to FOIA requests ever been delayed pending review 

by political appointees at the Department of Justice? 

Ms. PUSTAY. Not at the Department of Justice. We have, I think, 

an outstanding track record at DOJ of processing more requests 

these past 2 years than we ever have before, of releasing more 

records these past 2 years than ever before, and of managing our 

backlog over the past 2 years. So I think the facts speak for themselves. 

Senator GRASSLEY. OK. Then, why or why not to this question. 

Do you believe that the involvement of political appointees in FOIA 

requests is acceptable practice within the Justice Department? 

Ms. PUSTAY. The involvement that we have is totally acceptable 

and, as I said, exactly how it has always been. It is awareness for 

awareness and management purposes, and that is all. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Cornyn. 

Senator CORNYN. I just have a few more questions. 

I noticed in the FOIA.gov website, which I compliment the Department for putting up—I hope it becomes very robust and something that people will be able to use for multiple purposes. But I 

noticed that for fiscal year 2010 the Department of Justice reVerDate Nov 24 2008 09:54 Mar 27, 2012 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\73178.TXT SJUD1 PsN: CMORC
17 

ceived, it looks like, 7,224 requests and—or I am sorry. It looks like 

that was the number of requests pending. 

Ms. PUSTAY. We get about 63,000 requests a year at DOJ. 

Senator CORNYN. OK. I read this wrong. So the number of requests pending at the start of the year was 7,224, and at the end 

of the year it is 7,538. So rather than chipping away at the backlog, 

the backlog is getting worse. Right? 

Ms. PUSTAY. Our backlog only increased by 204 at the Department of Justice, and that is despite receiving over 2,000 more requests this past year than the year before. So—— 

Senator CORNYN. I guess you are looking at the glass being halffull and I am looking at it being half-empty. 

Ms. PUSTAY. Absolutely. Absolutely. Out of 63,000 requests—— 

Senator CORNYN. And your backlog is getting worse. It is sort of 

like the Federal Government and spending. Our debt keeps getting 

bigger and bigger. 

Chairman LEAHY. Let her finish the answer, though, if we could. 

Senator CORNYN. I am sorry. 

Chairman LEAHY. I will make sure you have plenty of time to 

continue. 

Had you finished your answer? 

Ms. PUSTAY. Having increased our processing of requests—we 

processed more this past year than we did last year. Despite having received 2,000 more requests, the backlog only went up by 204. 

Out of 63,000 incoming requests for a year, I think that really is 

a remarkable statistic. 

Senator CORNYN. And at the end of the year, you had 7,538 requests pending. 

Ms. PUSTAY. Yes. You are looking at—pending is different than 

backlog, but that could be right. Pending could mean it came in the 

day before the report was issued. Backlog means it is something 

that has been on the books over the statutory time period. So it is 

just two different stats. That is all. 

Senator CORNYN. And how many are in the backlog? 

Ms. PUSTAY. 204 out of sixty—— 

Senator CORNYN. Out of the 7,538 pending? 

Ms. PUSTAY. Yes, exactly. Exactly. Our backlog increase is only 

204. 

Senator CORNYN. Following up on Senator Grassley’s questions, 

is it ever appropriate for political decisions to stall or block a FOIA 

request? Ms. Pustay? 

Ms. PUSTAY. No, not to stall or block. I certainly would not agree 

with those words. 

Senator CORNYN. I mean, that is simply not the law. 

Ms. PUSTAY. No. 

Senator CORNYN. As you pointed out, it is irrelevant who the requester is. 

Ms. PUSTAY. It is irrelevant who the requester is. 

Senator CORNYN. Or the purpose for which the information is 

being requested, correct? 

Ms. PUSTAY. Absolutely. Absolutely. 

Senator CORNYN. And don’t you agree that if we were able to create a system whereby there were more timely responses by Federal 

agencies to FOIA requests, there would perhaps be a greater sense 

18 

of trust and confidence among requesters that everybody was being 

treated exactly the same? In other words, when there is such a 

large backlog in requests or delays in producing the documents, it 

seems to me that that gives rise to concerns that maybe people are 

not being treated on an equal basis and the law is not being uniformly applied. Would you agree with that concern? 

Ms. PUSTAY. It is not at all my experience that that is a concern, 

and I have regular contact with requesters. I have a lot of outreach 

with the requester community, and, of course, just by working with 

agencies day in and day out. We see firsthand across the Government that on many, many occasions agency officials are communicating with FOIA requesters, explaining what the situation is, 

explaining what the backlog is, where a request might be in a 

queue. And in my experience, overwhelmingly requesters are understanding of the process. 

We have long had a policy of asking agencies to give contact information to requesters so that there can be a dialog. This is not 

something that is new. And it is a process that really does help increase understanding between requesters and agencies. So my experience is not at all in line with the concern that you are raising. 

Senator CORNYN. So everybody is happy with the—— 

Ms. PUSTAY. Well, I am sure everyone is not happy, but they are 

accepting of the situation. Again, 600,000 FOIA requests across the 

Government is an incredible crush, an incredible workload, and it 

went up this past year. 

Senator CORNYN. Well, it should not be just looked at as a crush 

or a workload; it is the responsibility—— 

Ms. PUSTAY. Oh, sure. 

Senator CORNYN.—under the law to respond on a timely basis, 

correct? 

Ms. PUSTAY. Sure, sure. I use those words—no, I absolutely 

agree. I use those words just to convey the magnitude of the interest in making requests. 

Senator CORNYN. And, Director Nisbet, I just have one final 

question of you. If I understand the record correctly, you were the 

one who mediated the Associated Press FOIA request of the Department of Homeland Security that resulted in the revelation of 

political screening. Can you tell us what your reaction was to the 

DHS conduct that was revealed in that story? 

Ms. NISBET. Well, our part in that was that the Associated Press 

came to us because it had not gotten a response to its FOIA request for the e-mails on that subject. We were very pleased that 

we were able to help in that case and to help get those records released to the Associated Press, as a result of which the stories were 

written that Senator Grassley referred to. 

I have to say that is the only request that I can recall of that 

nature—you are asking about requesters complaining about that. 

But certainly that was a significant concern in that case, and we 

were glad that we were able to help. 

Senator CORNYN. And you shared that concern of political screening? 

Ms. NISBET. Certainly. If the allegations are as written, that is 

a concern, and I believe that certainly my colleague from the Justice Department would agree with that. 

19 

Senator CORNYN. Thank you. 

Senator GRASSLEY. Could I have 15 seconds for an observation as 

we close this panel. 

Chairman LEAHY. Go ahead. 

Senator GRASSLEY. I do not dispute anything that you have told 

me because you said, well, it is not a whole lot different than it has 

been for 20 years. But, you see, that is what is wrong, whether it 

is 20 years under a Republican or 20 years under a Democrat. But 

it also tells me—the point I tried to make in my opening comment—that the President set a very high benchmark, and if we are 

doing the same thing after 21⁄2 years of this administration, the 

same as they have been doing for 20 years, the President’s benchmark is not being followed by the people he appoints. 

Thank you very much. 

Chairman LEAHY. Did you want to respond? 

Ms. PUSTAY. Yes. 

Chairman LEAHY. OK, we will take time out of the next panel. 

Go ahead. 

Ms. PUSTAY. Just really, really quickly. My comment about 

things being the same was completely connected to the idea of the 

review or alerting of political officials of FOIA requests. That 

stayed the same. The process of FOIA has changed dramatically. 

I really have never seen transparency as fulsome and as robustly 

worked on as I have now. I think we are the most transparent that 

we have ever been. I think it is quite a different day now. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. Thank you. 

Thank you very much. We will take a 2-minute recess while we 

change panels. 

[Pause.] 

Chairman LEAHY. Thank you. The first witness will be John Podesta. I feel he is certainly somebody who knows this room very 

well. He is my former Chief of Staff, formerly counsel here in this 

Committee, and currently serves as the president and CEO of the 

Center for American Progress. He had also been White House Chief 

of Staff to President Bill Clinton. He has held several other positions in the Clinton administration, including Assistant to the 

President, Deputy Chief of Staff, Staff Secretary, and Senior Policy 

Adviser in Government information, privacy, telecommunications, 

security, regulatory policy. He served in numerous positions on 

Capitol Hill. 

I apologize for the laryngitis this morning. 

He served as co-chair of President Obama’s transition where he 

laid the groundwork for President Obama’s historic FOIA memorandum, a memorandum which restored the presumption of disclosure of Government information. He is a graduate of Knox College 

and Georgetown University Law Center, where he is currently a 

visiting professor of law. 

Mr. Podesta, it is great to have you here. Great to see you. 

20 

STATEMENT OF JOHN D. PODESTA, PRESIDENT AND CHIEF 

EXECUTIVE, CENTER FOR AMERICAN PROGRESS ACTION 

FUND, WASHINGTON, D.C. 

Mr. PODESTA. Thank you, Mr. Chairman and Senator Grassley. 

It is great to be back in the Committee, and it could not be led by 

two greater champions of openness and accountability. So it is a 

pleasure to be here during Sunshine Week. 

I think this hearing comes at a momentous time for the Freedom 

of Information Act as it comes on the heels of last week’s Supreme 

Court ruling in Milner v. Department of the Navy, which has been 

referred to, which properly narrowed the scope of the (b)(2) exemption 2 and the recent AT&T decision finding that corporations do 

not have a right of personal privacy under the Act. We should celebrate these victories, but there is more work to do. 

While President Obama has delivered in many respects on his 

promise to have the most transparent administration in the Nation’s history, the results on FOIA, while improving, I think still 

have a long way to go. The problem, I think, Senators, is not one 

of policy. I think Attorney General Holder’s FOIA memorandum 

tells Federal agencies that in the face of doubt openness prevails, 

and the Office of Management and Budget’s Open Government directive instructs agencies to reduce backlogs by 10 percent a year. 

The problem, as I think this Committee has noted this morning, 

is in implementation. Federal agencies in the year after the Holder 

memo increased the use of legal exemptions to keep more records 

secret, according to the Associated Press, and the Justice Department continues to defend expansive agency interpretations of FOIA 

exemptions. 

I would note in the administration’s favor they have reduced the 

use of the (b)(2) and (b)(5) exemptions in the past year, which I 

would characterize as ‘‘We just do not want to give you the information exemptions in the Act.’’ 

So the question today is: How do we turn to good policy that is 

embedded in the President’s and Attorney General’s memoranda 

and OMB directives into reality? And I offer three ideas. 

First, along the lines of Senator Whitehouse, we should require 

automatic Internet disclosure for publicly useful data sets. FOIA, 

of course, rests on four key principles: Disclosure should be the 

general rule, not the exception. All individuals have equal right of 

access to information, as Senator Grassley has noted. The burden 

of disclosure should rest with the Government, not with the people. 

And people denied access to documents have a right to relief 

through the courts. 

As importantly as those four principles, when FOIA was passed, 

then Attorney General Ramsey Clark added another, which is that 

there needed to be a fundamental shift in Government attitude toward public records and the value of openness. Those principles 

need to be applied and that attitude needs to be updated for the 

digital age. You have done a good deal of that in the 2007 amendments that were processed by this Committee and championed by 

the Chairman and Senator Cornyn. But disclosure should be automatic, not just in response to requests, and it should be done 

through the Internet so everyone has easy and immediate access. 

21 

I think the recent experience of Recovery.gov and Data.gov provide useful models for Congress to expand automatic disclosure 

under 552(a) of the Act. Congress can help by setting standards for 

exactly what should be automatically disclosed and disseminated. 

Second, we should build a searchable online data base where the 

public can track FOIA requests and view agency responses. The 

public in most cases cannot see what FOIA requests have been submitted to Federal agencies or what information was provided in response to those requests. The administration’s planned FOIA.gov 

website will provide report cards on compliance. That is an important step in the right direction. It is not a great leap forward. We 

have proposed that if the Federal Government would automatically 

publish their FOIA requests as well as information provided in response through a centralized searchable, online data base, automating these functions will increase productivity. It will save 

money. It will serve the public better. 

Third, we need to improve information used to assess FOIA implementation. Annual agency FOIA reports, again, as the testimony this morning indicates, provide useful data on requests 

granted and denied. But the Department of Justice, for example, 

does not disclose the number and percentage of FOIA denials it 

chooses to defend. Nor do agencies report what they have done to 

comply with the Holder memo. So I think more can be done in that 

arena, too. 

And if I could, Mr. Chairman, I would like to call your attention 

to one other topic vital to openness and free debate. Two Senate 

bills introduced last month would criminalize the disclosure of classified information to unauthorized people. Protecting properly classified Government information from improper disclosure is an important priority. I think I have certainly earned my spurs trying 

to reduce the number of classified records while simultaneously 

better protecting classified information. But these proposals sweep 

too broadly. They create a chilling effect on legitimate Government 

communication. I think we have come too far without an official secrets act in our country, and we cannot afford to sacrifice that 

hard-won progress to shortsighted doubts. So I would ask you, Mr. 

Chairman, to take a look at those proposals. I do not think they 

will meet with your high standards of openness. 

Thank you. 

[The prepared statement of Mr. Podesta appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Sarah Cohen is certainly familiar with this Committee and our 

work up here. She is Knight Professor of the Practice of Journalism 

and Public Policy at Duke University’s Sanford School of Public 

Policy. She joined the School of Public Policy in 2009. She worked 

nearly 20 years as a reporter and editor, shared many of the major 

awards in journalism, including the Pulitzer Prize, the Goldsmith 

Prize, the Selden Ring Award, the Investigative Reporters and Editors Gold Medal, and I probably left some out. She holds a bachelor’s degree from the University of North Carolina, Chapel Hill; a 

master’s degree from the University of Maryland; and she is testifying today on behalf of the Sunshine in Government Initiative. 

Ms. Cohen, good to have you here. 

22 

STATEMENT OF SARAH COHEN, KNIGHT PROFESSOR OF THE 

PRACTICE OF JOURNALISM AND PUBLIC POLICY, SANFORD 

SCHOOL OF PUBLIC POLICY, DUKE UNIVERSITY, DURHAM, 

NORTH CAROLINA, ON BEHALF OF THE SUNSHINE IN GOVERNMENT INITIATIVE 

Ms. COHEN. Thank you very much, Chairman Leahy and Senator 

Grassley and members of the Committee. Thank you so much for 

the invitation to talk about the Freedom of Information Act in the 

digital age. In my reporting career, I depended frequently on the 

Act, and I appreciate this Committee’s longstanding commitment to 

accountability and open records. 

In the past 2 years, President Obama’s policies to promote accountability through open government has resulted in some policy 

changes that are beginning to affect day-to-day practice, but they 

are still not habit on the ground. Just one example is looser guidelines for releasing internal e-mails which contributed to our understanding of the Deepwater Horizon oil spill and its aftermath. 

But administrations change. These actions can be reversed as 

quickly as they began, and many of the President’s initiatives are 

aimed at helping consumers find data and at collaborative Government. Public affairs journalism requires more than the products of 

a well-planned public information effort. It also requires access to 

the artifacts of governing. 

So FOIA remains a vital tool, and it is a tool that simply just 

does not meet its promise. You have heard in the past of problems 

that still have not been resolved, such as agencies’ overuse of personal privacy exemptions. I know this Committee has worked hard 

to reduce the proliferation of special (b)(3) amendments, but they 

remain a concern. 

Today I would like to describe two of the biggest impediments to 

the effective use of FOIA among journalists, and I detail others in 

my written statement. But at core, they all suggest a widespread 

but wrong default position that records belong to the Government 

and not to the public. This position turns FOIA upside down. Instead of the Government convincing the public that certain information must be kept secret, in practice the public must convince 

officials that it should be released. 

The biggest problem in journalists’ use of FOIA, as has been suggested here, is timeliness. Agencies are reporting improved response times, but we are not seeing them yet. Admittedly, reporters’ requests are broad and difficult to fulfill, and the subjects are 

quite naturally politically sensitive. But I have never received a 

final answer to a FOIA within the deadline. Some reporters joke 

about sending birthday cards to their FOIA requests because response is measured in years, not days. And when asked, the Office 

of Government Information Services can prod agencies to respond, 

but so far we have seen little in the progress on delays. 

I wanted to highlight one consistent and growing source of delay. 

That is the requirement to vet contracts and other documents with 

the originator to identify trade secrets and other commercially confidential information. The records are then held hostage to the subject of the request. It gets to run the clock, and it often is granted 

extensive redactions, if it responds at all. 

23 

The second point I want to make is that agency websites are incomplete and incomprehensible. I and other journalists have used 

FOIA to obtain Congressionally mandated reports on the use of 

funds in Iraq and Afghanistan, but they are not posted on the Defense Department or Inspector General websites. Original nursing 

home inspections with reviewers comments, a very common request 

among local reporters, requires individual FOIA requests. And even 

if these kinds of common documents were posted, the chance of 

finding them is slim. 

In 2009, the Associated Press tried to identify all of the major 

agencies’ reading rooms so it could monitor them. It gave up after 

a week. The reporter had already found 97 reading rooms in just 

four departments. 

So what can Congress do to improve the implementation? It 

might go further than in recent years to enforce reasonable deadlines and appropriate use of exemptions. It could build the current 

policy of the presumption of openness into the law, and it could require disclosure in a central virtual location by Cabinet-level agency of common public records, such as correspondence logs, calendars, and spending awards, and it could more specifically define 

frequently requested records. Any combination of these would reinforce the idea that our Government holds transparency and accountability as a core value. 

Mr. Chairman, I hear you call again the public’s access to records 

a ‘‘cornerstone of our democracy.’’ I appreciate the efforts made by 

Congress and President Obama to open our Government to scrutiny even when that effort may reflect poorly on its performance. 

But recent changes cannot be considered complete until compliance 

with current policy and deadlines is more consistent and a structure is erected to prevent this or the next President from reverting 

to secrecy. 

There are certainly times when the democratic need for open 

records conflicts with other vital priorities, such as privacy and national security. I believe journalists and their news organizations 

would be happy to work on these substantive issues if they could 

be assured that the law usually worked as it should. 

Thank you so much for the opportunity to talk with you about 

this. 

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

for the record.] 

Chairman LEAHY. Thank you very much. 

Our next witness is Thomas Fitton. He is the president of Judicial Watch, a public interest group that is set up to investigate 

Government corruption. He has been affiliated with Judicial Watch 

since 1998. He is a former talk radio and television host and analyst. He is the author of several published articles. He also previously worked at the International Policy Forum, the Leadership 

Institute, and Accuracy in Media. Mr. Fitton earned his bachelor’s 

degree from George Washington University. 

Mr. Fitton, welcome. Please go ahead. 

24 

STATEMENT OF THOMAS FITTON, PRESIDENT, JUDICIAL 

WATCH, WASHINGTON, D.C. 

Mr. FITTON. Thank you, Mr. Chairman. Thank you, Chairman 

Leahy and Senator Grassley, for hosting this hearing. It is an 

honor for me on behalf of Judicial Watch to appear before this 

Committee, and I want to take some time to extend personal 

thanks to you both, the Chairman and Senator Grassley, for not 

only your leadership on Government transparency but your often 

unheralded work on behalf of Government whistleblowers. You 

helped at least one of our clients many years ago, and I am sure 

you have helped many other whistleblowers over the years, and 

these brave folk are often alone in their efforts to expose Government wrongdoing. So your help is crucial and has been crucial to 

saving jobs and careers. 

Essential to Judicial Watch’s anticorruption and transparency 

mission obviously is the Freedom of Information Act. We are probably the only group on the right that uses it the way we do. We 

have used this tool effectively to root out corruption in the Clinton 

administration and to take on the Bush administration’s penchant 

for improper secrecy. We have nearly 17 years’ experience using 

FOIA to advance the public interest, and without a doubt, we are 

the most active FOIA requester and litigator operating today. 

The American people were promised a new era of transparency 

with the Obama administration. Unfortunately, this promise has 

not been kept. 

To be clear, the Obama administration is less transparent than 

the Bush administration. 

We have filed over 325 FOIA requests with the Obama 

administriation, and we have been forced to file 44 FOIA lawsuits 

against the Obama administration to enforce the law. 

Administratively, Obama administration agencies have built additional hurdles and stonewalled even the most basic FOIA requests. The Bush administration is tougher and trickier. 

And once we are forced to go to Federal court, the Obamam administration continues to fight us tooth and nail. The Obama administration’s litigious approach to FOIA is exactly the same as the 

Bush administration’s, so one can imagine the difficulties we encounter litigating these issues in court against the Obama Justice 

Department. 

As you know, we have been investigating the bailouts, particularly Fannie and Freddie, trying to find out about political contributions and other key documents. The Obama administration 

has taken the position that, despite the fact of Fannie and Freddie 

putting taxpayers on the hook for trillions of dollars, including at 

least in the current number $153 billion in funds expended for 

Fannie and Freddie, the Obama administration has taken the position that not one of those documents is subject to the Freedom of 

Information Act. These agencies have been taken over completely 

by the Federal Housing and Finance Administration, and yet they 

say no one has a right to these agencies’ records, nor will they be 

subject to disclosure. We are at the appellate stage on that issue 

in terms of litigation. 

In addition, to the walling off of control of our Nation’s mortgage 

market through Fannie and Freddie from public accountability, the 

25 

Obama Treasury Department has been seemingly incapable to disclosing even basic information on the various Government bailouts. 

So I cannot quite fathom how this Administration can laud a new era of transparency while over $1 trillion in Government spending 

is shielded from practical oversight and scrutiny by the American 

people. 

This Committee may also be interested to learn the truth behind 

the Obama White House’s repeated trumpeting of the release of Secret Service White House visitor logs. In fact, the Obama administration is refusing to release tens of thousands of visitor logs and 

insists, following a Bush administration legal policy developed at 

the end of that administration, that they are not subject to the 

Freedom of Information Act. Obviously, the Secret Service is part 

of the Department of Homeland Security. Those records are subject 

to the Freedom of Information Act. 

In 2009, we were invited to the White House to visit with Norm 

Eisen, then Special Counsel to the President for Ethics and Government, to discuss Judicial Watch’s pursuit of these visitor logs, 

and we were told by the Obama White House in no uncertain 

terms that they wanted us to publicly encourage and praise them 

for being transparent, saying it would be good for them and good 

for us. Well, they refused to release these records as they are supposed to under FOIA, and we were forced to sue in court. 

On top of this, we have the issue that now White House officials 

are meeting across the street at the White House Conference Center and in Caribou Coffee with lobbyists and others to avoid disclosing their names under this voluntary disclosure policy they 

have put out related to visitor logs. So rather than visiting people 

at the White House, where their names might be subject to disclosure, they are meeting outside the White House. How does that 

comport with the President’s commitment to transparency? 

We have been reading about the 1,000-plus Obamacare waivers 

that have been issued by the Department of Health and Human 

Services. We have yet to receive one document in response to our 

request, and now a lawsuit, after 5 months, about any of those 

waivers, not one document. 

And my final example briefly is the Department of Homeland Security—we had asked for a report about an illegal alien who is accused of running into and killing a nun. The report was sent, according to the reports, to the Department of Homeland Security 

Secretary Napolitano last year. We asked for the final report. They 

said, ‘‘We will give it to you.’’ And then they said to us at court, 

‘‘By the way, that report is not final. It is a draft and you cannot 

have it. We are still working on the final report.’’ Well, we just got 

it last month, and the report was dated November 24th. That to 

me is an indication of ham-handedness, only political appointees 

could be involved in that sort of process. 

So those are the concerns we have—— 

Chairman LEAHY. Excuse me. You did get the report, though? 

Mr. FITTON. We did get a report dated November 24th, but I do 

not know how a report dated November 24th could still be being 

worked on in January, February, and March. 

Chairman LEAHY. I just want to make sure we understood that 

you got it. 

26 

Mr. FITTON. That is right. 

Chairman LEAHY. I am sorry you have not been able to get the 

records of the visits during the Bush administration, and I was not 

able to, either. 

[The prepared statement of Mr. Fitton appears as a submission 

for the record.] 

Chairman LEAHY. Let me go back to Mr. Podesta. You led the effort during the Clinton administration to restore the presumption 

of disclosure for Government information, and it has been testified 

that policy changed under the next administration, the Bush administration. You worked to make it more open under the Obama 

administration. Now, these are Presidential policies that could 

change from President to President. Should we enact some legislation to codify the presumption of disclosure, whether it is a Democratic or Republican administration? 

Mr. PODESTA. Well, I would certainly support that, Mr. Chairman. Let me say that I think the structure of the Act, as I noted 

in my opening statement, really does create at some level the presumption of openness because, as the FOIA changed the previous 

law in 1966, the right of every person to every record subject to 

narrow exemptions and the right to go to court does embed in the 

FOIA itself a presumption of openness and disclosure. 

I think there is one place that is in particular need of legislative 

attention, and that is with respect to classified information. I was 

able to serve on Senator Moynihan’s Commission that studied the 

problems of Government secrecy. He suggested and had bipartisan 

support across the political spectrum for a set of recommendations 

that included codifying the presumption of openness, particularly 

in the (b)(1) exemption, and that has been subject to change back 

and forth with the passage of administrations. And I think that is 

something that the Committee did consider when that report was 

issued in the 1990s, but it should take a second look at it. It is an 

extremely important report on Government secrecy. 

Chairman LEAHY. I would like to see a better understanding of 

what should be classified and what is not. I mean, we had some 

strange new classifications that came up a few years ago that no 

one ever heard of. I remember being in a closed-door, top-secret 

briefing, and the first two items that came up were not top secret. 

One was either a Time or Newsweek cover, and the other was 

something else that had been published in a scholarly paper that 

had been available for several years. 

There was some discussion among those who were there—and I 

am trying to be vague about what the subject was we were discussing—that perhaps the briefers had lost some credibility by beginning with those two. It reminds me of a long time ago, another 

head of the CIA who would come running to the Hill every time 

the press had disclosed something and say, ‘‘Well, I meant to have 

told you about this.’’ And I told him that he should take the New 

York Times, instead of coming up for briefings, mark it ‘‘Top Secret’’ and deliver it to each of us. We would get the information in 

a more timely fashion. We would certainly get it in far greater detail than he ever gave us. And we would get that wonderful crossword puzzle. 

27 

Ms. Cohen, I know you are here today representing the Sunshine 

in Government Initiative. I know that my story of this former Director of the CIA about the New York Times can be said about 

many other newspapers, just to point out that we oftentimes, including people here in Congress, rely more on the media to get this 

information than we do from whoever is in Government. The producers recently of an award-winning documentary film about Lyme 

disease, entitled ‘‘Under Our Skin,’’ reported that a Freedom of Information Act request they submitted to the Centers for Disease 

Control back during the last administration, in 2007, is still outstanding. And you have testified that during your time as an investigator reporter you never received a timely response to a FOIA request. 

So what does that do if you are trying to report on something, 

say a health scare where parents may be wanting to read about 

something that might affect their children’s health or a medication 

that a cancer patient is taking or whatever it might be, and the 

press often is the one that blows the whistle first. But what happens if you cannot get timely FOIA? 

Ms. COHEN. Well, there are two issues that happen, I think. The 

first one is in a case of a public event, a health scare, frankly you 

get the documents unofficially. You are going to find a way to report that story. And if you have to get them through leaks or 

through some other way, you will get them that way. 

I think the more frightening thing are the stories that are never 

done, that the public never hears about. There is a reporter in 

Texas who, after a year and a half, gave up on doing a story on 

private security contractors who are protecting Federal courthouses 

because he was convinced he was never going to get those records, 

and he has never done that story. And the problem is that most 

reporters go in with questions, not answers, and if you cannot even 

ask the question, you can never even find out whether or not you 

are going to get the answer. So I think that is the more frightening 

part of that. 

Chairman LEAHY. And after you have been stonewalled long 

enough, your editor is going to say, ‘‘Hey, we are paying you. I am 

going to put you on something else.’’ 

Ms. COHEN. Well, yes, you move on. I mean, there are plenty of 

stories to be done, and if it is futile and you are not sure of what 

the answer is going to be, it may be that there is no problem, and 

so you move on. 

Chairman LEAHY. My time is used up. Senator Grassley. 

Senator GRASSLEY. Thank you. 

Mr. Fitton, AP published yesterday, ‘‘Promises, Promises: Little 

transparency progress,’’ concluding that in year two the administration’s performance was mixed and that it was struggling to fulfill the President’s promises on transparency. 

The first question very briefly: Based on your firsthand experience, do you agree with the evaluation of the Obama administration’s performance in the first year, which was rated at C or lower? 

Mr. FITTON. Yes. I would give it a failing grade. 

Senator GRASSLEY. Two, how would you grade the Obama administration’s performance during the second year? 

28 

Mr. FITTON. It is still failing. To be specific, we appreciate the 

increased availability of Government material on the Internet, but 

about matters of public interest and controversy, in terms of getting information from the administration, it is as difficult if not 

more difficult than ever. 

Senator GRASSLEY. You are familiar with Tom Bridis’ investigative report for AP. According to the report, in 2009 and 2010, 

Homeland Security diverted requests for records to senior political 

advisers who often delayed the release of records they considered 

politically sensitive. The political vetting often delayed the release 

of information for weeks beyond the usual wait. According to an AP 

report, Homeland Security rescinded the rule prior to political—for 

prior political approval July of last year. Supposedly under a new 

policy, records are now submitted to the Secretary’s political advisers 3 days before they are made public, but can be released without 

their approval. 

Based on your experience, are President Obama’s political appointees still engaging in a politicized approach to handling requests for information under FOIA and to litigating lawsuits under 

the Act? 

Mr. FITTON. Yes, and certainly our experience with the Department of Homeland Security is consistent with that, specifically the 

release of this final report that became a draft report, that became 

a report in progress, that became a report that was finished in November of 2010. 

Senator GRASSLEY. Expand a little bit on your experiences. How 

widespread is the politicized approach to requests for information 

under FOIA? 

Mr. FITTON. Well, you see indications of the politicization when 

the response makes no sense to you, as I say, with the DHS memo 

or where you are told that, ‘‘We are not even going to look for documents because nothing you are asking for would be subject to disclosure, so we are not going to bother looking.’’ Or with, frankly, 

the request more recently of the FBI files. We asked for the documents related to Ted Kennedy’s FBI file, and we had to push and 

push and push, and the FBI pushed back on us, and it turned out 

to be they did not want to release embarrassing information. They 

ended up releasing it to us in the end, but it came after 9 months 

of fighting. And that to me was an example of the administration 

for political reasons withholding embarrassing information about, 

well, a recently deceased friendly voice. 

Senator GRASSLEY. Your organization has extensive experience 

with the tactics employed by this administration by political appointees in handling FOIA. Based on what you have seen, do you 

believe an independent investigation is warranted? 

Mr. FITTON. Yes. 

Senator GRASSLEY. And if so, do you have any suggestions or recommendations on who should investigate politicized compliance 

with Freedom of Information Act requests and what the parameters of that investigation might be? 

Mr. FITTON. Well, if you think the law is important, you would 

have an independent counsel of some type appointed by the agency 

or by the Justice Department. If you think the law is a law to be 

trifled with, that it is a big joke—which I think that is how it has 

29 

been treated from administration to administration. The 

politicization of FOIA did not begin with the Obama administration. But we were told it would end, and it has not. 

Senator GRASSLEY. My last question. As I noted before, your organization has significant experience. What is your evaluation of 

the Office of Government Information Services? What is the general impression of the requester community about the Office of 

Government Information Services? 

Mr. FITTON. That agency may be helpful to non-expert requesters 

in terms of helping them with the FOIA process. We have used it 

a little bit to try to speed along certain requests, and we have been 

successful in that regard. But when you are in a fight or a dispute 

with an agency, you are not going to rely on that because you can 

go to court and get finality as to what the dispute is. You are not 

going to get finality through this agency. 

Senator GRASSLEY. My last question is whether or not you have 

got any suggestions for improving the Office of Government Information Services. 

Mr. FITTON. Well, I would not focus on another layer of bureaucracy, personally. I would focus on the agencies and the political appointees and making sure that there is a commitment to FOIA. 

Our Government, for better or for worse, depending on your point 

of view, is doing more than ever, and FOIA has not caught up with 

it. 

Senator GRASSLEY. Mr. Chairman, I want to thank you so much 

for this sort of hearing, but it is something that you have just got 

to keep your hands on all the time if we are ever going to beat 

down these road blocks. 

Chairman LEAHY. I have been doing it for over 30 years and will 

continue. 

Senator GRASSLEY. I know it. That is all the more reason we 

have got to work hard. 

Chairman LEAHY. Thank you. 

Senator Whitehouse, then Senator Franken. 

Senator WHITEHOUSE. Were the panelists here when I asked my 

questions to the first panel? Could I ask each of you to respond? 

The topic being here we are in the Google age, the digital age, what 

are the best steps that we can do to make the FOIA banks more 

accessible to the public, even people who just do not want to file 

a FOIA themselves but just want to use it for research purposes? 

Mr. PODESTA. Yes, Senator, my prepared testimony and my 

statement this morning go into that in some detail. I think there 

are two large baskets that you should be looking at. One is information that ought to be automatically disclosed without resort to 

FOIA requests. The Obama administration has taken some criticism from Mr. Fitton. I do not think there is any question that it 

has gone further than any administration in history in putting out 

information, particularly on Recovery.gov, Data.gov, and putting up 

useful information to the public. 

The Freedom of Information Act always had a provision that required certain information to be published as a pro forma matter. 

That has been expanded to include responses to FOIA requests in 

which people have—the agency thought that it would be requested 

again, so they put it out there. But that could be taken much, 

30 

much further. So that is one area to exploit—my written testimony 

goes into some areas where that might be particularly useful. 

A second area is that FOIA requests themselves, as a result of 

the legislation that was passed by the Chairman and Senator Cornyn, there is now a requirement that FOIA requests get a docket 

number. The requests themselves can be published into a common 

data base. The responses can be put into a common data base. That 

would actually probably be a more productive way to process requests, would save money in the long run, and provide valuable information to the public. 

Senator WHITEHOUSE. Do you think that the notion of a search 

engine on FOIA.gov that can go through the websites of different 

departments is adequate? 

Mr. PODESTA. Sure, I mean—no. I think what FOIA.gov does is 

to try to have a common set of policies, give people some better 

tools to basically interact with Federal agencies on FOIA, but I 

think it could definitely go further. 

And, again, I think Recovery.gov is a good example in which if 

you put the data out there, people in the private sector will think 

of all kinds of interesting ways to utilize that data to create more 

productivity that can come from having open access to Government 

information. 

Senator WHITEHOUSE. Ms. Cohen. 

Ms. COHEN. Yes, there are a couple things. I think your thoughts 

on the searchable FOIA is excellent. I just want to mention that 

when we have been talking about these frequently requested 

records or common records, it is so inconsistent whether or not 

those are ever posted. I know that virtually every FOIA request I 

have ever made has never shown up on a Government website except when it was posted before it was responded to, to me. So those 

sites have a long way to go, but you do need a search engine to 

go through them. I think there must be several hundred of those 

sites out there. 

And the second thing that I have mentioned in my written testimony is to also spend some time administratively looking at the 

systems that are used to generate records. One of the real problems 

here is that the records systems still cannot be searched in a way 

that then produces an efficient system, so that the review of how 

agencies are redoing their records systems I think might include a 

review of whether or not there is transparency in those records systems built in, because there really is not right now. 

Senator WHITEHOUSE. Mr. Fitton. 

Mr. FITTON. Yes, Senator. Some folks specialize in FOIA’ing 

FOIAs: Give me the list of all the FOIAs, and look for the juicy 

ones, and then pursue those a little bit more. 

Obviously, putting out large swaths of information is good, and 

there has been progress in that regard. There has been some concern that a lot of the information, it was reported last week, was 

not correctly input. I think that is more a matter of competency 

than anything else. 

But as I noted, in matters of public controversy, the Internet is 

not going to be where you find that. For instance, the decision 

whether or not to put Fannie and Freddie into conservatorship, we 

are litigating that right now. Decisions about the bailout, about 

31 

why those decisions were made, the deliberative process type of decisions, that is where you get into disputes, and obviously that is 

where the interest is in terms of the public on matters of controversy or where there may be concerns about the decisionmaking 

and what went into it. And that is unlikely to get onto the Internet, and if it does get onto the Internet, right now you are going 

to have difficulty finding it. 

Senator WHITEHOUSE. But it would at least enable the resources 

that these agencies have, limited resources, to respond to FOIA requests to be dedicated to those more challenging ones that you are 

suggesting rather than chasing around the day-to-day stuff because 

that could be more readily accessed automatically. 

Mr. FITTON. Right. 

Senator WHITEHOUSE. And so it would be even helpful in that 

sense to the more challenges requests. No? 

Mr. FITTON. That is right. For instance, the BP oil spill, many 

thousands of documents have been posted by the administration, 

appropriately so, on the Internet and we got them separately. But 

we are happy to use the Internet—if we think the documents are 

there and we are confident that they are all responsive to a particular request. We do not—believe it or not, we do not want to sue 

if we can avoid it. We would be happy to avoid litigation. 

Chairman LEAHY. Thank you, and I am going to turn the gavel 

over to Senator Franken, who has been extraordinarily patient, but 

who has also been very valuable to this Committee and has helped 

in this area. 

Senator FRANKEN [presiding]. Thank you. I came from Indian Affairs, and I just stepped out for some people from Minneapolis City 

Council, to talk to them, so I think I am picking up—or I may not 

even be picking up. I may just be repeating what Senator Whitehouse just said, so I do not want to do that. But the gist of what 

I think I heard, because I heard the last 15 seconds of Mr. Fitton’s 

answer, is that if you put online pretty much everything, I think 

that Mr. Fitton’s premise might have been—I am extrapolating 

from the last 15 seconds of your answer—that if the administration 

just puts everything online, they are still not going to put online 

some of the most controversial stuff, which is the kind of stuff that 

you want. Is that right? 

Mr. FITTON. I would suspect that. 

Senator FRANKEN. You would suspect that, and probably have a 

reason to, right? 

Mr. FITTON. Well, there are privileges, you know, there are lawful reasons for withholding information, and often discretionary. 

Some administrations will be more willing to release information 

than others, and that is where the litigation comes in. 

Senator FRANKEN. Right. But by putting on so much, like in the 

BP thing, they put on stuff that was very helpful, right? They put 

up a whole BP site basically about the spill, right? 

Mr. FITTON. Right. 

Senator FRANKEN. OK. So that is very helpful. And then it sort 

of makes it more efficient to go after the more controversial stuff 

if everything else has been online. That is what you have been suggesting, Mr. Podesta, right? 

32 

Mr. PODESTA. That is right, Senator. And, you know, I think that 

as I said, the kinds of things the Government might think of as 

being useful in that data are probably small in comparison to what 

citizens could think of to make that data useful once it is up and 

once it is online. And that is where I think you can get—you know, 

it is the power of Google. All of a sudden you have got—— 

Senator FRANKEN. It sounds like a Wikipedia kind of thing where 

citizens can go in and say, ‘‘Why don’t you put this up? Why don’t 

you put that up?’’ Is that what you are talking about? 

Mr. PODESTA. I think it is both what they put up but also what 

you do to make that information useful. I will give you a specific 

example. We just did a return on investment of every school district in the country based on money that went into that district, 

State and local and Federal, and what the return was on the outside. 

Now, the Department of Education could have done that, but 

they did not do it, but, you know, we found a way to do that. And 

I think once that data is available in good data sets, then people 

will think of imaginative ways that will improve the productivity 

of Government and, you know, lead to breakthroughs in all kinds 

of ways. 

Senator FRANKEN. Let me ask you about this, because you have 

been in an administration as Chief of Staff, and during the Clinton 

administration I am sure there was—I mean I know there was a 

tremendous number of FOIA requests. And I am, you know, very— 

you know, I want FOIA to work, and I want people to be able to 

get the—I think the journalists should be able to get the stuff they 

want. 

Did you ever get the feeling that there were just fishing expeditions during the Clinton administration? 

Mr. PODESTA. Of course. 

Senator FRANKEN. OK. And—— 

Mr. PODESTA. And, by the way, there is nothing wrong with that. 

Sometimes you catch fish. 

Senator FRANKEN. OK. 

[Laughter.] 

Senator FRANKEN. But let me ask you about that, though. As I 

recall, during that period there seemed to be an incredible amount 

of requests coming from the House of Representatives, and from 

other places. Did that in a sense make it harder to comply with actual real—not legitimate but a more serious kind of—Ms. Cohen, 

why don’t you answer this? Does that tend to make it harder for 

people like you who are really going after something? 

Ms. COHEN. Well, I think a lot of people would say that we go 

on fishing expeditions as well. The nature of those kinds of requests, whether they come from other branches of Government or 

from journalists, is that they are very broad and they do not know 

exactly what they are looking for. And I think that is an important 

thing for both journalists and other people to be able to do. It certainly is—it does make it more difficult on the people who are trying to answer it, but I think those are also the kinds of requests 

that a place like Judicial Watch is doing. 

33 

I do think that if you put more of the things that you have already found on the Internet, it does free up some resources to get 

to those ones. 

Senator FRANKEN. OK, which is where Senator Whitehouse 

ended and where I started. Let me take a couple moments. Mr. Fitton, thank you for complimenting both the Ranking Member and 

the Chairman on whistleblowers. I think it is very important to 

protect whistleblowers. I was a little confused about the visitor logs 

at the White House and the Caribou Coffee thing. If they are not 

allowing the visitor logs, why would they go to Caribou Coffee? 

Mr. FITTON. Well, they are disclosing them voluntarily after, I 

think, August of 2009. Anything before that you have to ask them 

specifically, and they may withhold information. The question is 

not whether—— 

Senator FRANKEN. Wait a minute. I am sorry. I was very confused about that. 

Mr. FITTON. They are voluntarily disclosing the visitor logs, but 

they are saying it is a voluntary disclosure, it is not pursued 

through the Freedom of Information Act. During the Bush administration, we had asked for the visitor logs related to Jack Abramoff, 

and we were given those logs pursuant to litigation, but also pursuant to the Freedom of Information Act. Then the left started asking 

the Bush administration for more interesting visitors from their 

perspective, and the Bush administration said, Enough of this, we 

are going to say that these logs are not subject to the Freedom of 

Information Act. The Obama administration continues with that 

legal position. 

The voluntary disclosure is subject to caveats. They can release— 

withhold names based on—for political reasons, that they are meeting with appointees or someone they do not want to be disclosed 

within a certain amount of time. So they know they are voluntarily 

disclosing this information, and then they are going across the 

street—or so it has been reported in the New York Times—to Caribou Coffee to avoid this voluntary disclosure. So they are saying 

they are not subject to disclosure under the law, the disclosure is 

voluntary, and that can be reversed either by this President or any 

subsequent President. So, you know, we are still in the position of 

trying to get information pursuant to the law, and we are unable 

to do it. 

Mr. PODESTA. Senator, I think this is one of those examples of 

no good deed going unpunished. I think the administration has put 

more information about who goes in and out of the West Wing of 

the White House than obviously any administration in the past, including the one in which I served. And I think that—you know, so 

Mr. Fitton’s complaint is—and that is regularly updated. They did 

the process, I do not know, for the first 6 months in August of 

2009, but now they regularly and routinely update who goes in and 

out of the White House. I think it will be difficult, although certainly not impossible, to reverse that decision and decide that—particularly in this administration but in subsequent administrations 

as well, to decide that the public does not have a right to know who 

is walking in and out of the West Wing of the White House. 

Senator FRANKEN. Thank you. 

34 

Mr. FITTON. Just briefly, the Office of Administration voluntarily 

complied with FOIA even though it did not think it was subject to 

Freedom of Information, and that changed under the Bush administration. We used to get material from the OA from the Clinton 

administration and during parts of the Bush administration, and 

then they shut it off, and it has not been turned on again. It can 

stop. 

Mr. PODESTA. Mr. Fitton and I could go on about this. I spent 

many quality hours before Judge Lamberth explaining what our information practices were in the Clinton White House with Mr. Fitton’s predecessor at Judicial Watch. But I think that—and he did 

note that, I think, good public practice comes into play and Presidents change and they can move in the wrong direction. But I am 

not sure exactly what Mr. Fitton’s recommendation is for resolving 

this particular controversy. 

Senator FRANKEN. Well, I want to thank you both, and you can 

continue—— 

Mr. PODESTA. Cameras in Caribou Coffee. 

Senator FRANKEN. I think you can continue the conversation in 

Caribou Coffee. 

[Laughter.] 

Senator FRANKEN. Thank you all for coming today. The record 

will be held open for a week for additional material and questions. 

This hearing is adjourned. 

[Whereupon, at 12:06 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

35 


73178.001
36 


73178.002
37 


73178.003
38 


73178.004
39 


73178.005
40 


73178.006
41 


73178.007
42 


73178.008
43 


73178.009
44 


73178.010
45 


73178.011
46 


73178.012
47 


73178.013
48 


73178.014
49 


73178.015
50 


73178.016
51 


73178.017
52 


73178.018
53 


73178.019
54 


73178.020
55 


73178.021
56 


73178.022
57 


73178.023
58 


73178.024
59 


73178.025
60 


73178.026
61 


73178.027
62 


73178.028
63 


73178.029
64 


73178.030
65 


73178.031
66 


73178.032
67 


73178.033
68 


73178.034
69 


73178.035
70 


73178.036
71 


73178.037
72 


73178.038
73 


73178.039
74 


73178.040
75 


73178.041
76 


73178.042
77 


73178.043
78 


73178.044
79 


73178.045
80 


73178.046
81 


73178.047
82 


73178.048
83 


73178.049
84 


73178.050
85 


73178.051
86 


73178.052
87 


73178.053
88 


73178.054
89 


73178.055
90 


73178.056
91 


73178.057
92 


73178.058
93 


73178.059
94 


73178.060
95 


73178.061
96 


73178.062
97 


73178.063
98 


73178.064
99 


73178.065
100 


73178.066
101 


73178.067
102 


73178.068
103 


73178.069
104 


73178.070
105 


73178.071
106 


73178.072
107 


73178.073
108 


73178.074
109 


73178.075
110 


73178.076
111 


73178.077
112 


73178.078
113 


73178.079
114 


73178.080
115 


73178.081
116 


73178.082
117 


73178.083
118 


73178.084
119 


73178.085
120 


73178.086
121 


73178.087
122 


73178.088
123 


73178.089
124 


73178.090
125 


73178.091
126 


73178.092
127 


73178.093
128 


73178.094
129 


73178.095
130 


73178.096
131 


73178.097
132 


73178.098
133 


73178.099
134 


73178.100
135 


73178.101
136 


73178.102
137 


73178.103
138 


73178.104
139 


73178.105
140 


73178.106
141 


73178.107
142 


73178.108
143 


73178.109
144 


73178.110
145 


73178.111
146 


73178.112
147 


73178.113
148 


73178.114
149 


73178.115
150 


73178.116
151 


73178.117
152 


73178.118
153 


73178.119
154 


73178.120
155 


73178.121
156 


73178.122
157 


73178.123
158 

Æ 


73178.124