[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]





      AGENCY RESPONSE TO THE ELECTRONIC FREEDOM OF INFORMATION ACT

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
                      INFORMATION, AND TECHNOLOGY

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 14, 2000

                               __________

                           Serial No. 106-220

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform

                               ----------

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72-077                     WASHINGTON : 2001


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                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South     DENNIS J. KUCINICH, Ohio
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                             ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)
DAVID VITTER, Louisiana


                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
           David A. Kass, Deputy Counsel and Parliamentarian
                    Lisa Smith Arafune, Chief Clerk
                 Phil Schiliro, Minority Staff Director
                                 ------                                

   Subcommittee on Government Management, Information, and Technology

                   STEPHEN HORN, California, Chairman
JUDY BIGGERT, Illinois               JIM TURNER, Texas
THOMAS M. DAVIS, Virginia            PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon                  MAJOR R. OWENS, New York
DOUG OSE, California                 PATSY T. MINK, Hawaii
PAUL RYAN, Wisconsin                 CAROLYN B. MALONEY, New York

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
          J. Russell George, Staff Director and Chief Counsel
               Heather Bailey, Professional Staff Member
                           Bryan Sisk, Clerk
                    Trey Henderson, Minority Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 14, 2000....................................     1
Statement of:
    Dalglish, Lucy, esquire, executive director, the Reporters 
      Committee for Freedom of the Press, accompanied by Rebecca 
      Daugherty, director, Reporters Committee FOI Service 
      Center; Patrice McDermott, policy analyst, OMB Watch; and 
      Ian Marquand, Freedom of Information Chair, the Society of 
      Professional Journalists...................................    62
    Gotbaum, Joshua, Executive Associate Director and Controller, 
      the Office of Management and Budget; Ethan Posner, Deputy 
      Associate Attorney General, U.S. Department of Justice; and 
      Henry J. McIntyre, Director, Directorate for the Freedom of 
      Information Security and Review, Department of Defense.....     3
Letters, statements, etc., submitted for the record by:
    Dalglish, Lucy, esquire, executive director, the Reporters 
      Committee for Freedom of the Press, prepared statement of..    67
    Gotbaum, Joshua, Executive Associate Director and Controller, 
      the Office of Management and Budget:
        Information concerning conflicts.........................    49
        Information concerning disagreement between OMB and OMB 
          Watch..................................................   123
        Information concerning EFOIA.............................    56
        Information concerning Washington National Records Center    61
        Prepared statement of....................................     6
    Horn, Hon. Stephen, a Representative in Congress from the 
      State of California, prepared statement of.................     2
    Marquand, Ian, Freedom of Information Chair, the Society of 
      Professional Journalists, prepared statement of............    87
    McDermott, Patrice, policy analyst, OMB Watch, prepared 
      statement of...............................................    77
    McIntyre, Henry J., Director, Directorate for the Freedom of 
      Information Security and Review, Department of Defense, 
      prepared statement of......................................    29
    Posner, Ethan, Deputy Associate Attorney General, U.S. 
      Department of Justice, prepared statement of...............    13
    Turner, Hon. Jim, a Representative in Congress from the State 
      of Texas, prepared statement of............................   127

 
      AGENCY RESPONSE TO THE ELECTRONIC FREEDOM OF INFORMATION ACT

                              ----------                              


                        WEDNESDAY, JUNE 14, 2000

                  House of Representatives,
Subcommittee on Government Management, Information, 
                                    and Technology,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen Horn 
(chairman of the subcommittee) presiding.
    Present: Representatives Horn, Ose, Turner, and Maloney.
    Staff present: J. Russell George, staff director and chief 
counsel; Heather Bailey, professional staff member; Bonnie 
Heald, director of communications; Bryan Sisk, clerk; Will 
Ackerly, Chris Dollar, and Meg Kinnard, interns; Trey 
Henderson, minority counsel; and Jean Gosa, minority assistant 
clerk.
    Mr. Horn. The Subcommittee on Government Management, 
Information, and Technology will come to order.
    As e-commerce and e-mail continue to supplant traditional 
paper forms of communication, Congress enacted and the 
President signed into law the Electronic Freedom of Information 
Amendments of 1996. The goal of these amendments was two-fold: 
to provide citizens with readily available electronic access to 
the most commonly requested information generated by Federal 
departments and agencies, and also to decrease the logjam of 
public requests for information that in some cases took 
agencies years to provide.
    Unfortunately, the Electronic Freedom of Information Act 
has not been as successful as intended. Journalists and private 
citizens say that some agencies still take a year or more to 
provide information requested under the Freedom of Information 
Act. Other critics, such as OMB Watch, which is represented 
here today, report that some agencies still have not identified 
their most commonly requested documents, much less placed them 
online. In part, some agencies do not know what the law 
requires, which has resulted in the deletion of electronic 
reading rooms, handbooks, and documents from agency Web sites.
    The subcommittee will examine these and other issues today 
in our effort to determine whether Federal departments and 
agencies are complying with the Electronic Freedom of 
Information Act.
    [The prepared statement of Hon. Stephen Horn follows:]
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    Mr. Horn. We will proceed. We note that this is panel one, 
and we will--let me just go through the ground rules. We swear 
in all witnesses before subcommittees and the full committee of 
Government Reform, and we go down the agenda, just as you see 
it before you. Automatically, when I call your name to begin 
your presentation, your full statement is already going to be 
in the record, so what we would like you to do is maybe 5 
minutes, 8 minutes, 10 minutes at the most--to have you not 
read it. Yet, despite my saying this, people still mumble, 
mumble, mumble, and I do not need that. We have got that in the 
record. What I do need is a simple explanation of where you are 
on this issue, and just tell it like it is and use your own 
words, not your bureaucracy, and we will get along fine.
    On the swearing in, I would like to have all the people 
that are from your staff in the particular agency--the clerk 
will note who has taken the oath so we do not have to give them 
when they are giving you ideas in the questions and answer 
period.
    If you and the people that support you would stand and 
raise your right hands, we will give you the oath.
    [Witnesses sworn.]
    Mr. Horn. The clerk will note the three witnesses affirmed 
the oath.
    We will now then begin with our first witness, and that's 
Joshua Gotbaum, the Executive Associate Director and 
Controller, the Office of Management and Budget.
    Mr. Gotbaum is a regular here. We don't give frequent flyer 
points, but we are always glad to see you. It's your show.

STATEMENTS OF JOSHUA GOTBAUM, EXECUTIVE ASSOCIATE DIRECTOR AND 
CONTROLLER, THE OFFICE OF MANAGEMENT AND BUDGET; ETHAN POSNER, 
DEPUTY ASSOCIATE ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; 
AND HENRY J. MCINTYRE, DIRECTOR, DIRECTORATE FOR THE FREEDOM OF 
     INFORMATION SECURITY AND REVIEW, DEPARTMENT OF DEFENSE

    Mr. Gotbaum. Thank you, Mr. Chairman.
    Mr. Horn. Right.
    Mr. Gotbaum. I will, with your permission, summarize our 
view of the main points here.
    I don't want to spend a whole lot of time telling the 
committee that we think access to information is important, but 
I think it is essential that at least we affirm that we do so. 
Our view is that taking advantage of information technology to 
provide greater accountability, greater transparency, more 
information for citizens about their government and information 
from citizens is an essential part of the basic task of 
Government management. We take that one very seriously.
    And I think it is important, when we talk about EFOIA and 
talk about FOIA and talk about the transmission of information, 
that we do so in context, because the first point that we ought 
to get on the table is that we view EFOIA as an enabling 
statute. This statute said, with regard to requests for 
Government information, ``To the extent you can, you should 
move to electronic transmission. You should take advantage of 
information technology, take advantage of the Internet,'' and 
we believe that the administration is doing so with a 
vengeance.
    I've listed examples in my testimony, so I'm not going to 
go over them here. There is case after case after case in which 
agencies have taken advantage of technology to put basic data 
bases online, to start soliciting information from citizens 
online.
    I don't want to gild the lily, but I think it is really 
quite important, Mr. Chairman, that we recognize that that is 
consistent with and, in our view, the spirit of EFOIA.
    EFOIA, itself, provides some mandates with regard to taking 
advantage of electronic technology. It says, ``You will have 
electronic reading rooms.'' It says, ``You will have online 
indexes.'' And it says, ``You will provide an electronic option 
for what I'll call the `traditional' FOIA requests.'' And the 
law also says that OMB should provide guidance to agencies on 
compliance and on online indexes, and we have done so. We have 
provided guidance. We have worked with the Department of 
Justice. And I will defer to Ethan Posner to talk about the 
very extensive efforts by the Department of Justice to give 
agencies guidance. I think it is worth noting and I think it is 
worth someone outside the Department of Justice saying this. 
They have gone the extra mile with regard to FOIA and EFOIA in 
the sense that not only have they provided guidance, but they 
have provided online training sessions, they have provided how-
to books, etc.
    From our perspective, we are using what I'll call the ``new 
economy broadcast model of information,'' which I think EFOIA 
was intended to engender.
    We have provided general guidance, both as to the kinds of 
handbooks that agencies should provide and working with the 
Department of Justice on guidelines. We have, in this case and 
in dozens of others, encouraged agencies to go online to 
provide electronic information and other matters.
    This is a piece of the Clinger-Cohen mandate that this 
committee laid down with and which we are complying with which 
we agreed in GPEA. We have implemented that, as we have other 
initiatives, by, two things, Mr. Chairman. One is generic 
guidance on information systems that they should be thought 
about in advance and the standards they should meet, etc. And 
two is to say to agencies, ``We will bring into the budget 
process requests for information that do meet these standards, 
that are consistent with the program.''
    If you asked the question, ``What really does OMB do in 
this area?'' I would characterize it as general guidance and 
encouragement. We support individual agencies in their efforts 
to provide more-specific guidance--in this case the Department 
of Justice--and then we bring agency requests for improvements 
in IT and improvements in personnel, etc., into the budget 
process. From our perspective, the traditional FOIA model--
although an important one, one that has been a bedrock of 
Government information provision--should be a last resort. We 
don't think that people should have to send a letter through 
snail mail to some agency and ask the question in exactly the 
right way and have someone spend 10 or 20 days figuring out 
whether they do or don't have the information and then send a 
snail mail response. We think that doesn't make sense.
    What we think makes infinitely more sense is that what we 
believe EFOIA and the other pieces of legislation before this 
committee would say: the Government should aggressively, 
affirmatively put information out and online, and this is 
something which we are doing. Agency after agency is putting 
information online. Agency after agency has created online 
reading rooms. Agency after agency is creating online indexes.
    And so we view this issue, Mr. Chairman, as one in which we 
are making very, very substantial progress. We acknowledge that 
the information revolution is changing the very business of 
Government and we are responding to that, but we think that we 
are responding to it quite aggressively and in a way that is 
entirely consistent with the spirit of this legislation that we 
all support.
    Mr. Horn. That's very helpful.
    [The prepared statement of Mr. Gotbaum follows:]

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    Mr. Horn. We next have Ethan Posner, the Deputy Associate 
Attorney General representing the U.S. Department of Justice.
    Mr. Posner. Mr. Chairman, members of this subcommittee, 
good afternoon. I am pleased to testify about the EFOIA 
amendments today.
    As Attorney General Reno has stated repeatedly, FOIA and 
EFOIA are at the heart of open Government and democracy. As I 
know from personal experience, the Attorney General has 
fostered a personal and sustained commitment to FOIA throughout 
the entire Justice Department. Under her leadership, we have 
placed a sustained priority on improving our FOIA service to 
the American people.
    Just in the past year, Mr. Chairman, the Department of 
Justice has processed almost a quarter million FOIA requests, 
releasing hundreds of thousands of pages of important 
Government information to the public.
    And let me also add, in the spirit of Mr. Gotbaum's 
remarks, we have, of course, also made available on our Web 
site an extraordinary number of documents that, although not 
requested by FOIA, it is part of the spirit of EFOIA. It is 
part of getting our information out to the public directly so 
that, as Mr. Gotbaum accurately put it, hopefully 1 day FOIA 
becomes the last resort.
    We believe FOIA was strengthened greatly with the 1996 
enactment of EFOIA. We believe Federal agencies are in 
substantial compliance with EFOIA. And, in particular, we 
believe Federal agencies have done an excellent job posting a 
wide variety of Government information on the Internet. All of 
this, or virtually all, has occurred just in the last few 
years.
    Just in the last 2 years, for example, numerous Federal 
agencies have developed particular FOIA Web sites, they have 
posted approximately 100,000 pages of important FOIA-related 
documents on these sites. This accomplishment is a testament to 
the importance and, we believe, success of EFOIA.
    In particular, we are very proud of the Department of 
Justice's comprehensive FOIA Web site, which is easily accessed 
through a specific FOIA link on our main Department of Justice 
home page. Today, the Department's FOIA Web site offers tens of 
thousands of pages of records, FOIA reference material. You can 
access all sorts of FOIA guides. You can learn how to make a 
request from our Web site. You can find all the FOIA contacts 
at the Department of Justice. You can browse through enormous 
electronic reading rooms containing all sorts of information. 
You can get Justice Department policy statements. You can get 
all of our major manuals, like the U.S. Attorney's Manual. You 
can get all sorts of annual reports on a wide variety of 
subjects--press releases, FOIA guides, Office of Legal Counsel 
opinions, Immigration decisions, antitrust guidelines. And you 
can get records of dozens of closed FBI investigations, 
including those on Al Capone and Julius and Ethel Rosenberg, to 
name just a few.
    In addition, Mr. Chairman, to complying with EFOIA and 
maintaining our own Justice Department FOIA Web site, we help 
other agencies comply and refine their own FOIA Web sites.
    We appreciated Mr. Gotbaum's remarks about the Department's 
effort. Obviously, we agree with that. Although under EFOIA 
each agency is responsible for implementing EFOIA, we have 
taken considerable action to encourage agency compliance in 
accordance with the statute.
    I set a lot of that out in my prepared remarks. Let me just 
highlight a few things.
    We've issued extensive written guidance about what is 
required under EFOIA and how to comply. We've held all sorts of 
training sessions. We've issued frequently asked questions and 
answers. We've issued detailed guidelines for model agency Web 
sites. We've told Federal agencies, for example, to maintain a 
FOIA home page on their Web site, to link the main page to 
their FOIA page. We've explained how to make FOIA Web sites 
more user friendly. We've held a specific conference attended 
by FOIA professionals that was just devoted to agency Web 
sites. We reinforced our guidance there and we emphasized an 
important issue, which is the coordination of agency FOIA staff 
with agency technical staff, because it is the technical staff, 
obviously, that play the critical role in posting the 
information on the Internet.
    In fact, the Attorney General followed up that conference 
with a memorandum to department and agency heads in which she 
stressed the importance of EFOIA. She feels very strongly about 
it. I have heard her say that personally, myself, repeatedly. 
And she reminded everybody why it is critical for the agency 
FOIA and technical staff to work together to post information 
on the Web.
    We have this FOIA counselor service, where our Office of 
Information and Privacy responds to thousands of phone calls 
and questions. They are in virtually daily contact with the 
FOIA professionals at Federal agencies around the United 
States.
    In our view, Mr. Chairman, Federal agencies generally have 
followed the Department's extensive guidance and training. 
They've developed effective FOIA Web sites, and they have 
otherwise complied with EFOIA.
    There will always be more work to do and there will always 
be more progress to make, and we will make it and we believe 
the other agencies will make it. But we also believe that the 
Department of Justice and other Federal agencies have provided 
considerably better service and more-responsive Government to 
the American people just in the last 24 months through our 
online access efforts.
    We will continue to encourage compliance with EFOIA. We 
will continue to work the Federal agencies to improve their 
FOIA sites and improve their compliance with EFOIA, and we will 
continue to work to post as much information as possible on not 
only our own Web site but other Web sites.
    We look forward to working with the chairman and the 
subcommittee on these important issues, and I'd be happy to 
answer any questions.
    Mr. Horn. Well, we thank you very much.
    [The prepared statement of Mr. Posner follows:]

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    Mr. Horn. I might add, I hope all three of you can stay 
through the second panel, because I'd like to see a dialog here 
and not just have everybody in the administration escape and 
then other things come up and there's no use--I mean, if we can 
do it today, fine; otherwise, we've got to have another hearing 
and bring you all up again, and that's wasting your time and my 
time.
    I appreciate your statements.
    Let me just ask on this point--and then we'll go to the 
Department of Defense--has the Department of Justice or OMB 
taken an inventory with regard to the agencies and departments, 
such as, ``Do you have this--`` let's say an electronic room, 
so forth? Has any work been done along that line, either by 
OMB, Department of Justice, since you say there's no central 
office here that really worries about this?
    Mr. Posner. We certainly--we have sort of a daily dialog 
about a range of FOIA issues with the FOIA professionals. Some 
of that--some of those conversations are, you know, ``When is 
your annual report going to be ready,'' and ``Where's this'' 
and ``Where's that,'' so there is clearly some of that. We do 
review other agency Web sites, and that is part of our overall 
dialog with them. I mean, we don't do an exhaustive survey 
every week, but we are certainly aware of what is on the other 
sites, and as part of our training and our ongoing--our daily 
dialog with the FOIA professionals in the other agencies, 
certain those issues come up, Mr. Chairman.
    Mr. Horn. Because we would be interested, if you have a 
document somewhere that just solves some of the basics, and to 
see to what extent--we can always ask GAO to do it, but if you 
have it we can save them another mission.
    Mr. Posner. We have a very thick notebook, I think, we 
printed out of a lot of the pages from the other agency Web 
sites, if that is what you are referring to.
    Mr. Horn. Yes, just a check mark as to, ``Did they do this 
under the law or didn't they?'' That's what we're interested in 
in this series of hearings.
    Mr. McIntyre, Henry J. McIntyre, is Director, Directorate 
for Freedom of Information Security and Review, Department of 
Defense.
    Thank you for coming, Mr. McIntyre.
    Mr. McIntyre. Thank you, Mr. Chairman.
    Mr. Chairman, my directorate develops the FOIA policy for 
the Department of Defense and processes the requests for 
records under the control of the Office of the Secretary of 
Defense and the Joint Staff. Because of the missions, 
functions, and size of the Department of Defense, it is 
decentralized into the separate military departments and 
defense agencies. The FOIA program, to include implementation 
of the EFOIA, is, likewise, decentralized within the Department 
of Defense components that consist of the Army, Navy, and Air 
Force, the departments of those services, and 12 Defense 
agencies. These DOD components conduct their own FOIA programs 
under the policy guidance of the DOD regulation which we 
publish.
    For purposes of directly implementing the legislation, my 
Directorate was and is responsible for 80 staff offices within 
Office of Secretary of Defense, the Joint Staff, and the nine 
unified combatant commands, as well as five OSD components that 
are geographically separated from Washington.
    We began implementing the EFOIA after its passage in April 
1997. We sent a memo to the combatant commands and those five 
OSD components that are geographically separated from us and 
informed them of the EFOIA requirements and instructed them to 
implement the legislation. The memorandum was also forwarded to 
the DOD components, the military services, and the Defense 
agencies, and told them to prepare their regulations and 
implement the legislation.
    We, of course, published a revised DOD FOIA regulation, DOD 
5400.7-R, in September 1998--and it is our understanding that 
we were the first agency to change our regulation to include 
the EFOIA amendments.
    In response to--not necessarily as a result of the FOIA, 
the Department of Defense established a Web site called 
``DefenseLINK.'' It has a wealth of information on it. It has 
links to the Defense agencies, to the CINCs. It lists, among 
other things, the annual report of the Secretary of Defense to 
Congress, the chairman's posture statement, and the DOD budget. 
It is constantly updated with news releases and top stories and 
it has links to other sites.
    One of the most valuable things, with regard to that Web 
site, are direct links to ``Gulf Link'' and to the POW/MIA Web 
site, which are high interest areas for the public so that they 
have access to those documents.
    We did establish an electronic reading room on the Web site 
which is accessible through DefenseLINK for the purpose of 
posting frequently requested documents on the Web. We have 
posted on documents on the electronic reading room. We are in 
the process of updating that site to make it more user-
friendly, and this redesigned Web site will allow better access 
to other Web pages, as I mentioned--Gulf Link, Prisoner of 
War--for those high-interest items that we consider the public 
may require.
    We have not had sufficient requests yet to identify 
documents as ``frequently-requested'' FOIA documents to qualify 
for placement on the Web. We have in place a high-speed scanner 
so images of qualified documents can be put on the Web. We have 
a reading room in the Pentagon where we have paper documents 
for a number of documents that have been released in the last 
30 years, and we plan on, with this high-speed scanner to scan 
the documents and again make them available, on the Web. At the 
moment we are awaiting final approval of a contract to get the 
technical experts to install the software and to teach us how 
to do it.
    Another provision to the legislation that my directorate 
has implemented is to make requesters aware that we have an e-
mail address. We have a computer set aside in our office to 
receive electronic requests via e-mail, and at the moment that 
e-mail address is on the Justice Department Web site, also. We 
only get about five requests a week, but overall for an entire 
year that is 250-some requests that can come in by e-mail and 
that we will answer.
    We, of course, answer by snail mail, not by e-mail, so that 
we have a permanent record, and, if we release documents, so 
that we have those documents on file.
    We also provide training to the Office of the Secretary of 
Defense and any of the Defense agencies or combatant commands 
who require or request it. Our goal is to provide at least two 
training sessions a year for the OSD staff.
    The DOD, I believe, has been successful in satisfying the 
requirements of the EFOIA to provide records in any form or 
format requested by any person. We provide records, if 
requested, on floppy disk, on CD-ROM, or magnetic tape.
    Again, I believe that the DOD has taken appropriate steps 
within the means at our disposal to implement the EFOIA 
amendments. Resources in the form of additional personnel and 
funding for server-based technology will be required to enable 
the DOD to establish and maintain the services required. We 
will continue to work with the IRM--information resource 
management--people and our chief information officer who works 
with the Chief Information Officer Council to use their 
influence to give those of us involved in implementing the 
EFOIA the support we need.
    Thank you, Mr. Chairman.
    Mr. Horn. Thank you very much. We appreciate the statement.
    [The prepared statement of Mr. McIntyre follows:]

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    Mr. Horn. We now will move to some questions here, and 
we'll start with Mr. Posner first.
    Concern has been raised that a provision of the Taxpayers' 
Bill of Rights would supersede the Freedom of Information Act, 
allowing the Internal Revenue Service greater latitude in 
determining what type of information they would release to the 
public.
    Can you just tell us how concerned should we be about this 
issue? And have any questions come up before you in Justice?
    Mr. Posner. Mr. Chairman, not yet. We understand there is a 
Joint Committee report on this. I think the administration is 
going to be commenting on that. I know Treasury is going to be 
issuing some comments.
    What I can pledge to you is the Department will look at 
this very, very carefully, but I think that will be part of the 
multi-agency review process, of which I'm sure we will be a 
participant.
    Mr. Horn. OK.
    Mr. Posner. But we have not had a chance to take a position 
yet.
    Mr. Horn. When do you estimate that decision will be made?
    Mr. Posner. I don't have an answer for you. I know that 
Treasury is going to be preparing comments. My understanding is 
that they are going to be doing it readily, quickly. I know a 
number of people are looking at this now, but I will get back 
to you with more detail.
    Mr. Horn. Is OMB circulating that issue throughout the 
administration?
    Mr. Gotbaum. I can't say that I know, Mr. Chairman, so why 
don't--with your permission, maybe the thing to do would be for 
us to respond formally to tell you what the timeframe is on 
which we will express an opinion.
    Mr. Horn. Without objection, whatever documents you do send 
us will be put at this point in the record.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T2077.039
    
    Mr. Horn. I assume the Justice Department would be making 
this, because that is a legal decision, really, between the 
privacy acts and the Taxpayer Bill of Rights and the Freedom of 
Information Act, and so it is a very touchy thing, I would 
think, that you have to take a look at. So that's one thing we 
will look forward to.
    What percentage would you say of the Freedom of Information 
Act requests--how close are they responded to the 20-day 
timeframe that was established in the Electronic Freedom of 
Information Act? Any data on that from either OMB or Justice?
    Mr. Posner. Within the Department, most of our--at least 
many, and maybe even most of our components respond under the 
20-day requirement. I know my office, the Office of the 
Associate Attorney General, has an average processing time of 
14 days, or something like that. Many of our--it may even be 
the majority of our components respond under the 20 days, and I 
believe our average, Department-wide, is under the 20 days.
    Mr. Horn. How is the FBI doing?
    Mr. Posner. I'm glad you asked that question, because the 
FBI----
    Mr. Horn. Well, that's what started this series of hearings 
4 years ago.
    Mr. Posner. Right.
    Mr. Horn. When you couldn't get anything inside of 4 years.
    Mr. Posner. I understand that, Mr. Chairman. The Bureau has 
made enormous strides with its backlog. I think the backlog has 
now been reduced from 15,000 to 5,000. It really is an 
extraordinary success story. Their average processing time I 
think is still high, because obviously you've got--you still 
have a backlog, but we have devoted hundreds of additional 
people to this. The Attorney General, herself, is personally 
committed to this. I have heard her comment on it and I have 
heard her ask for continued action on this. The backlog is 
being reduced sharply, and we've put a lot more people, and the 
Bureau, obviously, is to be commended for this. We've put a lot 
more people on this and the backlog is far less than it was 
just 2 years ago.
    Mr. Horn. Now, the FBI, did they ask for the resources to 
cut that from 4 years down to a year or 20 days or whatever it 
is now?
    Mr. Posner. I'd have to go back and look at the funding 
requests, but my understanding is that we, at least a couple of 
years ago, made some form of a request for additional resources 
for the Bureau, and several--I think they now have something 
like 700 FTEs at the Bureau just devoted to FOIA, which I think 
is at least a 100 percent increase from what it had been a 
couple years ago, and I think the additional people have had 
the requisite impact and the backlog is----
    Mr. Horn. And are those 700 full-time equivalents, are they 
on the electronic side, or is there a non-electronic side that 
is running it up to 700?
    Mr. Posner. Well, a lot of people at the Bureau, of course, 
spend time just responding to particular requests. To the 
extent that a request might be frequently requested and that it 
needs to get--you know, and then if it was created after a 
certain date it would need to be posted in the electronic 
reading room. I think that staff also participates in that. So 
I don't think that there is a separation between FOIA staff and 
EFOIA staff. I think they both have a role in working on the 
EFOIA requirements and getting things posted on the Web.
    Mr. Horn. Mr. Gotbaum, does OMB add resources at all to 
these when they are in the annual budget reviews? To what 
degree do we use the budget review as a way to make sure the 
law is being complied with?
    Mr. Gotbaum. Yes, Mr. Chairman, we do. I actually asked the 
OIRA staff this question in preparation for this hearing, and 
what they responded is that we know of no case in which EFOIA 
compliance, in particular, was the stated basis for a request 
in resources. What we have and what we find is two different 
kinds of requests, Mr. Chairman. One is requests for generic 
improvement in FOIA compliance, like the one that Mr. Posner 
just described, and the second is requests for improvement in 
systems response, Web site, and other information technology.
    As a result, I can't give you a chapter and verse on the 
specific piece. I can tell you that yes, we are actively 
engaged every year in budget discussions on IT systems, both 
because of this legislation and because of Clinger-Cohen and 
because of GPEA because of the various mandates that the 
committee has laid down, with which we strongly agree.
    Mr. Horn. So do any particular cases come in mind that have 
bothered OMB because they aren't anywhere near halfway doing 
the goals set out so you don't have any people that are like 
our debt collection types, where they aren't doing much, 
they're just talking?
    Mr. Gotbaum. No, Mr. Chairman. I've got to tell you that, 
in preparing for this hearing, I felt a lot more comfortable 
than I did before our FFMIA hearing, for instance.
    Mr. Horn. Well, I'm glad you are comfortable, so we'll see 
how we go.
    Mr. McIntyre, what is the Department of Defense response 
rate?
    Mr. McIntyre. According to the DOD annual FOIA program 
report that we compile and submit to Justice and which is on 
the Web.
    For fiscal year 1999, for simple requests, the median age 
was 20 days, which meets the EFOIA time line. If it is a 
complex request, the median age was 66 days, and if someone was 
granted expedited access, the median age was 7 days.
    Those are the simple figures for the entire DOD.
    Mr. Horn. Does OMB have a similar document for the 
inventory of the whole executive branch?
    Mr. Gotbaum. We haven't provided the documentation. We keep 
track of generic numbers of requests and the overall backlog. I 
don't know that we keep track of----
    Mr. Horn. Well, what I'm after are, again, the data that 
the administration has to administer the law. The law says, 
``Get it done in 20 days,'' and electronic reading rooms and 
all the rest of it, and it seems to me, if the executive branch 
is implementing the law, why you, the OMB, should be the ones 
that have what apparently the Department of Defense has done. 
That's the kind of data--those kinds of data are what we are 
interested in, just looking at the comparisons and there's 
progress being made. We know you can't do everything at the 
same time, but we'd just like to know who are the laggards, and 
that's--you know, with Y2K as well as with debt collection, we 
try to get a laggard panel and the good boys and girls panel. 
So we just wonder what kind of data you have.
    Mr. Gotbaum. Actually, I think the debt collection example 
is a good example, Mr. Chairman, if I can compare them and 
contrast them.
    We view our job, as I said in the testimony, as one of 
providing oversight and guidance. OMB will never be big enough, 
even in the dreams of those of us who occasionally ask for 
additional resources, for us to have enough OMB staff, for 
example, to review individual Web sites. So what we do is we 
work on summary statistics and we work on generic performance 
measures.
    In the Debt Collection Act, what we set forth and are 
beginning to get from agencies now is, ``Tell us what your 
delinquent debt is, whether the number is rising or falling.'' 
And we then use that to figure out where we have problem 
children.
    In FOIA we have information on the number of requests and 
whether that is rising or falling.
    In the day-to-day business of management in Government, 
like the Department of Justice we become aware where there are 
issues that require additional resources, so, as a result, it 
is not a surprise that DOD requires resources for this purpose. 
It is not a surprise that Justice requires resources for this 
purpose.
    What we don't do, Mr. Chairman--and I think it is 
worthwhile explaining why--is we don't set up a separate 
reporting system for each point of compliance.
    Mr. Horn. Yes.
    Mr. Gotbaum. And the reason we don't is we don't think that 
we should take the resources in OMB off of, say, GPEA, off of 
encouraging people to go paperless, to reviewing each one of 
the check marks on the 20,000 or so Federal Web sites. We think 
it is more effective, given our resources, to work by what I 
would characterize as a ``management by exception'' process, 
which is we lay out guidance.
    We know and the world knows that when there is a problem 
with agency activity there is a place to go. And that's why I 
think it is important. I mentioned it and I thought it was 
important and Mr. Posner mentioned it: when there is a problem 
with agency response under FOIA, people call the Department of 
Justice. That doesn't mean that the Department of Justice is 
charged legally with mandating compliance, but it does mean 
that the Department of Justice is aware of and provides, 
oversight and encouragement. That, Mr. Chairman, is the most 
efficient and the most effective way to get agencies, to 
comply.
    Mr. Horn. Does OMB have the authority, if it wanted to, to 
delegate some of these functions to the Department of Justice, 
or do you need a law? That's what I'm getting to.
    Mr. Gotbaum. I don't want to be definitive on what the law 
does. In this case, Mr. Chairman, I will tell you that, for 
most of the management functions of Government that you have 
entrusted oversight to us, we have, in fact, worked via 
delegation with other agencies. This works well whether it is 
an individual agency like the Department of Justice on FOIA or 
the CIO Council or CFO Council for improving grant 
simplification and grants management or the Federal Credit 
Policy Working Group, for which Treasury, in effect, is the 
information collection agent.
    So let me just say at this point we don't believe we need 
additional lawmaking in this area. We think this is an area 
where what we hope we get from the Congress is what you're 
doing right now, which is serious periodic oversight and 
calling people on the carpet and seeing what they're doing.
    Mr. Horn. Well, I agree with some that say that one Cabinet 
officer cannot really coordinate other Cabinet officers unless 
the President makes them Assistant to the President or 
something, but we've had that canard for 30 years around this 
town.
    Mr. Gotbaum. Mr. Chairman, I would say if that one Cabinet 
officer happens to be involved in the putting together of the 
budget, at least he gets a hearing.
    Mr. Horn. Good.
    Let's see here. OMB's responsibilities are essentially the 
oversight function, I would think, within the administration. I 
guess I would ask you--a number of you--what's the concerns 
about the State and Federal legislation and agency regulations 
with respect to privacy policy? You know, that's a major topic 
around here for the last 3 years, and nobody can come to focus 
on it in the legislative branch, and I don't think too much has 
happened in the Executive except for Ms. Shalala, who had the 
law. If we didn't do anything, she could do something.
    Mr. Gotbaum. Mr. Chairman, I think it is fair to say that 
privacy is another area in which we are acting affirmatively on 
a sustained basis and which, again, the changes in technology 
and the way both we have to do business and folks outside the 
Government do business mean that we have to essentially 
reassess the rules in context.
    For example, a year-and-a-half ago we, on our own motion, 
created a position within the Office of Management and Budget, 
a coordinator for privacy, precisely because we wanted to make 
sure that there was a locus for privacy discussions.
    We then followed that up with a series of directives, with 
some legislative suggestions, and some administrative 
suggestions, and in some cases--and this may be where there is 
a question on your part--we have consciously chosen to defer to 
the private sector on some issues. We've said, ``We are not 
going to heavy-handedly impose new restrictions on you unless 
you prove that you can't, yourself, clean up yourself.''
    And so I think, Mr. Chairman, this is an area where we have 
actually put a lot of effort in, not just medical privacy but 
privacy in the financial services context, privacy in how the 
Federal Government does its own business. What are the 
implications of the Privacy Act? The CIO Council, for example, 
created a working group to review what we were doing and see 
what else we need to do.
    I'd say that is an area, in fact, where there is a lot of 
motion, even though not all of it is legislation, sir.
    Mr. Horn. I'm going to yield now to Mr. Ose, the gentleman 
from California, to consume such time as he wishes in terms of 
questioning.
    Mr. Ose. Thank you, Mr. Chairman.
    I think my question is--I have a retrospective and a 
prospective approach here.
    First of all, for each of you, I'd like to understand, from 
the agency's performance, what are the best examples we have 
had so far of the implementation of a FOIA? And then, 
conversely, where do we need to improve? If you could give me 
some feedback on that, I'd appreciate that.
    Mr. McIntyre, at the DOD----
    Mr. Posner. I'll be happy to respond from the Justice 
Department's perspective.
    I think a lot of agencies have done some exceptional work 
with FOIA. The Department of Justice processed almost a quarter 
million FOIA requests last year, generating hundreds of 
thousands of pages of information. Many of the large Federal 
agencies do likewise. I mean, there are thousands of FTEs in 
the agencies that are devoted to--as I mentioned before, there 
are 700 FTEs just at the FBI who do nothing but FOIA, and so I 
think all the agencies in town generate a remarkable amount of 
information.
    I think, as to the subject of today's hearing, I think the 
agencies are making excellent progress in putting information 
on the Web, which we are all focused on and trying to do more 
of, and I think, thinking prospectively, I think that's where 
we want to be headed, continue to head in that direction. This 
is, obviously, part of the overall administration initiative to 
place more information on the Web to the public, whether it is 
requested by FOIA or not.
    You know, the Department has maybe about 100,000 pages just 
in the, I think, in the FOIA reading rooms and accessible under 
our FOIA Web page, plus, you know, another 100,000 or so pages 
available on our Web site anyway. That's an extraordinary 
amount of information to have been put on in a short period of 
time. I think other agencies have done that.
    So I think what I can tell you is that the agencies will 
continue to focus on putting more and more information on the 
Web, which we hope will, as Mr. Gotbaum described in the 
opening, reduce the reliance on FOIA, reduce the reliance on 
the 20th century letters, and hopefully we'll have 21st century 
communication and information on the Web, and I think that is 
where the agencies are headed.
    Mr. Ose. It would seem to me, in terms of the volume of the 
various agencies, like DOJ--you just referenced 200,000 pages 
in aggregate--in terms of the volume, perhaps the biggest 
challenge that a citizen may face if they wanted to do research 
is seeing whether or not that has already been done.
    I know the chairman's interest here is finding some means 
of expeditiously giving citizenry that information. In terms of 
cataloging or indexing for reference purposes, how do you 
handle your portal?
    Mr. Posner. I'm sorry? How do you handle----
    Mr. Ose. How do you handle the--a citizen who comes to your 
portal and says, ``I want to check out subject X.''
    Mr. Posner. Well, you would--obviously, citizens could do 
this differently, but you could get on the main Justice 
Department Web site, then you could get onto our FOIA Web site, 
which is going to direct you to----
    Mr. Ose. You click right through?
    Mr. Posner. Click right through. WWW.USDOJ.GOV, main 
department Web site, FOIA right there. Click FOIA and you're in 
the FOIA area. Now you're on the FOIA home site and then you 
can click on any number of things. One of the things you can 
click on are, reference materials, policy statements. It is 
going to direct you to an enormous amount of information.
    One of the things it is going to direct you to are our 
reading rooms, which have frequently requested records, as that 
term is defined, so you can already get what, as you put it, 
others have requested, and there are a host of things that 
would fall under that category.
    Now, that doesn't even include, obviously, what you can get 
off the other links on the Department's home page, so I'm just 
talking about the FOIA home page.
    I think I describe our Web site in detail in the prepared 
remarks, but that is, I think, how many citizens will get 
access to Department materials.
    You know, we also have press releases, briefs, all sorts of 
things we put on our Web site.
    Mr. Ose. How frequently do you update your cataloging of 
the materials on the Web site?
    Mr. Posner. I'm pretty sure we update our Web site probably 
virtually every day. I have to check to see how often we update 
the FOIA portion of the Web site. I suspect it is changing 
virtually daily, but, you know, I'd have to get more-detailed 
figures. But certainly we are always scanning things onto our 
Web site.
    Mr. Gotbaum. Mr. Ose, can I comment on that point?
    Mr. Ose. Certainly.
    Mr. Gotbaum. One of the things we are discovering, when we 
talk about the technological revolution that EFOIA is a part 
of, is that indexing systems, too, are, being improved over 
time. So one of the issues that we are now trying to deal with 
in the Federal Government is to see whether or not there aren't 
effective search technologies and search engines that would 
permit one to find things whether or not they have been 
indexed. One of the issues that we have right now is that most 
of the way that our indexes work is someone has to take a 
document, characterize it in some way, shape, or form. It's 
like the old Dewey Decimal System. They've got to characterize 
it and then it becomes part of the index.
    That means that we'll be slow. It means that we are at the 
mercy of whomever characterizes--how they characterize this.
    Mr. Ose. Your point is well made. I don't want to subject 
you to the waste, fraud, and abuse problems at HCFA, but the 
categorization thing is a very serious issue. And I can tell 
you my biggest problem--and I suggest that most citizens share 
this--is that when I get on a Web site or when I go the a 
search engine, usually the thing I'm looking for is number 50, 
so I've got to go through the first page and the second page 
and the third page. So I want to explore this a little bit 
further with you in terms of what you're doing, because I don't 
have time to go through 49 things to find the 1 that I'm 
looking for.
    How do you cross-reference, if you will?
    Mr. Gotbaum. That's what I'm saying, Mr. Ose. I think it is 
quite important that we, among other things, work to refine our 
search methodologies.
    Right now, although I will admit it is enormously 
frustrating to find what you're looking for as the 49th item on 
a list of 200. It is--let's be clear--a dramatic improvement 
over the zero that you would get if you went with the old Dewey 
Decimal System approach and didn't ask for it according to the 
Dewey decimal category.
    And so I think it is an extremely important issue. It is 
one that we are working on, and that the various agencies are 
working on. In most cases what we're finding is that they are 
turning from what I'll call a ``categorize it as you post it'' 
approach to one which goes to full content searches--in other 
words, searching throughout the document. This leaves it to the 
searcher to choose from among those materials.
    There is a cost to that. You're right. It means that you're 
going to get a list of 200 things, whereas before you got a 
list of two. But the benefit of that is that you will get that 
document which mentions the environmental remediation problem 
in northern California.
    Mr. Ose. We don't have any of those. [Laughter.]
    Does your search engine--is it portal specific, or is it 
one that you're buying off the shelf?
    Mr. Gotbaum. Different agencies are using different 
software--a range of them, actually. And what we are trying to 
do now--and I mentioned this when I started--right now we are 
mostly encouraging them to look aggressively at what is out 
there and what is possible. What we've found is that, if we try 
to specify a particular one, by the time every agency did it it 
would be obsolete.
    Mr. Ose. Which agencies--going back to my original 
question, which agencies, in OMB's opinion, are doing a good 
job and which agencies need improvement in this area?
    Mr. Gotbaum. I can't give you--as I mentioned----
    Mr. Ose. Mr. Gotbaum, that's what you told me last time I 
asked you a question, you couldn't put your finger on anybody.
    Mr. Gotbaum. And I will try very hard to be consistent, at 
least with what I said a week ago.
    Mr. Ose. Perhaps I could submit a question in writing for 
Mr. Gotbaum to respond to so that he doesn't end up with the 
embarrassing situation of mentioning names, if you will.
    Would that be acceptable, Mr. Chairman?
    Mr. Horn. That would be very acceptable, and, without 
objection, it will be put in the record at this point.
    Mr. Ose. All right.
    [The information referred to follows:]

    Many agencies have been working hard to improve the EFOIA 
section of their Web Sites. The Department of Justice, the 
Railroad Retirement Board, the Office of Personal Management, 
and the National Aeronautics and Space Administration have done 
an excellent job in their efforts to implement EFOIA.

    Mr. Ose. Mr. Posner, let me shift my focus to you, if I 
may.
    In your opinion, which agencies are doing, if you will, the 
best, and which stand improvement?
    Mr. Posner. On their Web sites, or----
    Mr. Ose. In handling the electronic processing of the 
Freedom of Information Act.
    Mr. Posner. I don't have names for you now. I can certainly 
say there are obviously--and some agencies are doing a better 
job. We are, obviously, proud of our efforts. Some of the 
smaller agencies have done a terrific job, as well--FDIC and 
the Railroad Board I think has a very good Web site. 
Unfortunately for you, I don't have, you know, sites that I can 
tell you right now I want to see improved. I can tell you, 
though, that there are such sites that we'd like to see updated 
and made more user friendly.
    We've issued an extraordinary amount of guidance. We're 
encouraging agencies. They are heading in that direction. But I 
can tell you that there are sites that we would like to see 
updated and made more user friendly.
    Mr. Ose. So tonight, when the chairman and I can't sleep at 
2:30 a.m., and we want to check this out, you would suggest, 
for the agencies that are doing a good job in implementing 
this, we do look at the FDIC portal or the Railroad portal or 
the Department of Justice?
    Mr. Posner. You could look at the Department of Justice 
first if you wanted. Yes, we think that's a very good site.
    Mr. Ose. Is there a simple code to access any of these 
Department's Web site that has, say, common features up to the 
name of the department? How does the average citizen listening 
to all this or reading this transcript--what do they get out of 
it in terms of how they access their Government?
    Mr. Posner. Well, I think, you know, if you typed in 
``Justice Department,'' I don't know where it would come up in 
the number of--you know, one would hope it would come up in the 
top 10 rather than 50, but I think if you put in ``Justice 
Department,'' you would get to our Web site pretty quickly.
    Now, once you--we think our Web site is easy to navigate, 
but one of the things you're going to get pretty quickly, 
you're going to get into the Commerce Department Web site 
pretty quickly, you're going to get into the Treasury Web site 
pretty quickly, and you're going to get into the Transportation 
Web site pretty quickly. You're going to get in a lot of things 
pretty quickly.
    So you type in ``Justice Department.`` You get onto our Web 
site and it is going to act as a link, as a portal to many, 
many other Federal agency Web sites. And I'm not even talking 
about Cabinet departments. You can probably get onto the FDIC's 
Web site pretty quickly, perhaps in a matter of minutes.
    Mr. Ose. What's the one for Justice?
    Mr. Posner. It is WWW.USDOJ.GOV.
    Mr. Ose. That's .GOV?
    Mr. Posner. Yes, .GOV. That's our main Web site, and you 
can get onto a host of information from there.
    Mr. Ose. So presumably, if you substitute the others for 
the DOJ, that one little bit there, we'll access that?
    Mr. Posner. That might be right. I don't know the Web site 
addresses for all the other Federal agencies, but i'm sure----
    Mr. Ose. Unless it is Department of Commerce, Commerce 
Department, and 18 other ways they can use two words.
    Mr. Posner. In that case it is DOC.GOV.
    Mr. Ose. Mr. McIntyre, how about over at DOD?
    Mr. McIntyre. The Defense Department Web site is 
WWW.DEFENSELINK.MIL.
    Mr. Ose. Slowly again.
    Mr. McIntyre. OK. WWW----
    Mr. Ose. I got that part. [Laughter.]
    Mr. McIntyre. DEFENSELINK--D-E-F-E-N-S-E-L-I-N-K, one 
word--.MIL.
    Mr. Ose. M-I-L?
    Mr. McIntyre. M-I-L. Right. We're in the military domain.
    Mr. Ose. And if you have----
    Mr. McIntyre. Army, Navy, Air Force is .MIL.
    Mr. Ose. OK.
    Mr. McIntyre. DIA is .MIL.
    Mr. Ose. Does your Web site have a FOIA click-through?
    Mr. McIntyre. Yes.
    Mr. Ose. Is there any feedback you'd care to give us as to 
the quality or the means by which it is the leading FOIA portal 
or one that could stand improvement? Don't be bashful.
    Mr. McIntyre. I represent the entire Department of Defense. 
From a personal standpoint, some of the links to the services, 
to the other Defense agencies, are a dream. They are just 
wonderfully set up. Others are a little more complicated, not 
necessarily complete.
    The Joint Staff has a marvelous Web site which is 
accessible through DefenseLINK. It lists the chairman's posture 
statement, it lists their joint vision, 20/20, their guidance 
documents, their policy statements in a broad sense.
    Mr. Ose. How about the FOIA issue?
    Mr. McIntyre. They're under our FOIA, we are their FOIA 
office, so they don't have a FOIA link. In general, information 
that is available to the public, the departments, military 
departments, have FOIA click-throughs on their sites also and 
access to electronic reading rooms. I do believe one does not 
have a direct click-through yet and--see, there's a separation. 
The FOIA Web pages are usually the IT folks. In the DOD sense 
it is the, you know, command control communication. Our chief 
information officer is responsible for the entire IT community 
and the Web site policies.
    The DefenseLINK is maintained by the Assistant Secretary of 
Defense Public Affairs, and we have--well, we ask them to make 
sure that we have a direct click-through on FOIA, which gets us 
to the FOIA page where our handbook is listed, our regulation 
is listed. We actually have the 40 or 50 slides that our FOIA 
people use when they give training on the entire FOIA, 
including the EFOIA requirements.
    Mr. Ose. Let me take my question a step forward, and this 
gets to an issue that has been before Government Reform 
repeatedly, having to do with the privacy issue.
    On any of these situations, whether it is OMB or DOJ or DOD 
or whomever, in terms of someone clicking in to check or to 
make a FOIA request, what information is retained at the 
receiving end in terms of who has made the request?
    Mr. McIntyre. We have a complete file in our vaulted area 
of the requester, the requester's correspondence, e-mail, fax. 
Our answer----
    Mr. Ose. Otherwise, you wouldn't be able to respond?
    Mr. McIntyre. Right.
    Mr. Ose. OK.
    Mr. McIntyre. But there is nothing on the Internet that 
would indicate who requested it.
    Mr. Ose. All right. Same at the DOJ?
    Mr. Posner. Yes, I believe so. I don't think there would be 
significant--I think there would be concern. We don't post that 
the chairman, for example, made a FOIA request. I don't think 
we post that on the Internet, but obviously we keep very 
detailed records of who has made FOIA requests. That's right.
    Mr. Ose. It's just we have had some problems recently with 
some electronic data that we seem to misplace now and then, and 
we're interested in avoiding that situation in the future.
    Mr. Chairman, I have no other questions. That was the 
particular area that I was interested in, and I appreciate your 
giving me the time and the generous allotment.
    Mr. Horn. Well, I was going to ask this next question, 
which is probably dear to our hearts here.
    In a recent Supreme Court Case, Public Citizen v. Carlin, 
the Archivist of the United States, the issue was National 
Archives' disposal of original electronic records under the 
Records Disposal Act. Journalists and citizens believe that the 
information was in the public domain and, therefore, should be 
available.
    So has this come to the attention of the Department of 
Justice?
    Mr. Posner. I believe we are aware of the case, and I think 
we've thought about it at length, and----
    Mr. Horn. Well, I assume you took it to court----
    Mr. Posner. Right.
    Mr. Horn [continuing]. If you are acting--so somewhere 
someone in the Department of Justice, one or more, might know 
something about this.
    Mr. Posner. They do.
    Mr. Horn. Yes. OK. What was their advice to the archivist?
    Mr. Posner. I don't know the answer to that. To the extent 
that there were privileged communications there, we would, 
obviously, have some concerns. But I will followup on that 
particular case because, as you know, the Department was very 
involved.
    Mr. Horn. Yes. Well, I'd like to hear from the Department 
of Justice. Are they going to appeal that to the Supreme Court?
    Mr. Posner. I will find that out for you, Mr. Chairman, and 
get back to you quickly.
    Mr. Horn. OK. Let us know, because it could be that they 
are not going to be.
    Now, they've had a fire out there, one or two fires, as a 
matter of fact, in their storage facilities out in Maryland, 
and the question is: what were those records and what started 
the fire, etc?
    Mr. Gotbaum, can you clarify that?
    Mr. Gotbaum. I'm sorry, Mr. Chairman. No, I cannot----
    Mr. Horn. You mean it did not get to the high ears of the 
Office of Management and Budget?
    Mr. Gotbaum. Let's just say that I am not aware that we 
know who started the fire or what was burned.
    Mr. Horn. Well, it wasn't Mrs. O'Leary. [Laughter.]
    Does that help?
    Mr. Gotbaum. I know it wasn't Mrs. O'Leary and it wasn't a 
large amount of ground brush in New Mexico. So if the question, 
Mr. Chairman, is kind of what's the implications of this fire--
--
    Mr. Horn. Well, I'm just curious. For one, it is on 
electronic records, on some of it. Now, how easy is it, except 
for a big magnet I remember, to wipe out electronic records, 
and is there a worry there by Justice and OMB when they see 
something like that happen?
    [No response.]
    Mr. Horn. Well, in other words, Justice hasn't been asked 
to do anything by either the White House or OMB or the 
Archivist on this?
    Mr. Gotbaum. Not that I'm aware of, Mr. Chairman.
    Mr. Horn. But you're not aware of it. Can you check?
    Mr. Gotbaum. Yes, we will.
    Mr. Horn. OK. Find out if there is and what are they 
planning to do. We can have the Archivist up. We're the 
oversight agency for the Archives. He's done a wonderful job, 
but these things happen, and I'd like to know what are people 
doing about it so they don't keep happening.
    You're saying nobody you know of in the Administration is 
really dealing with that. Did they just read it in the paper 
and go on? It could have been their records, since we all use 
the Archives--legislative branch, executive branch. I'm not 
sure on what the Article Three Judiciary do, but I assume 
sometimes materials are transferred to the Archives out of the 
Judiciary with cases and other things.
    So anyhow, that's--we'd just like to know what you know 
about it, since you are all under oath, and have you found out 
about that, so let us know.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T2077.040
    
    Mr. Horn. We'll hear from the next panel on that a little 
bit.
    OK. I am going to now go to the second panel, because I 
hear we've got some votes coming up and I'd like to get as much 
done as we can so you can all go about your duties.
    You can stay there. We're just going to move some chairs 
up. If you wouldn't mind, I'd like some dialog here, and we'll 
ask the--we have Lucy Dalglish, executive director of the 
Reporter's Committee for Freedom of the Press; Dr. Patrice 
McDermott, policy analyst, OMB Watch; and Ian Marquand, Freedom 
of Information Chair, the Society of Professional Journalists.
    I think some of you have been before us before and you know 
the routine of taking the oath, and if you have any assistants 
and they are going to whisper in your ear, let them take the 
oath, too, because I don't like baptisms going throughout the 
hearing.
    We then will--when we call on you, we will put your written 
statement in the record there and we'll talk from it.
    Is there anybody--assistants that are going to be 
whispering in your ears? If so, bring them up and the clerk 
will take the names.
    [Witnesses sworn.]
    Mr. Horn. The clerk will note that we have the witnesses 
and the supporters of--roughly six.
    So, Ms. Dalglish, executive director of the Reporter's 
Committee for Freedom of the Press, we are glad to have you 
here. You've done a lot of work on this over the years and we 
appreciate it.

 STATEMENTS OF LUCY DALGLISH, ESQUIRE, EXECUTIVE DIRECTOR, THE 
 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ACCOMPANIED BY 
 REBECCA DAUGHERTY, DIRECTOR, REPORTERS COMMITTEE FOI SERVICE 
 CENTER; PATRICE MCDERMOTT, POLICY ANALYST, OMB WATCH; AND IAN 
    MARQUAND, FREEDOM OF INFORMATION CHAIR, THE SOCIETY OF 
                    PROFESSIONAL JOURNALISTS

    Ms. Dalglish. Thank you, Mr. Chairman. I'd like to thank 
you for the opportunity to provide our views. As you said, my 
name is Lucy Dalglish, and I am accompanied today by Rebecca 
Daughterty, the director of the Reporters Committee FOI Service 
Center for about the last dozen years.
    The Reporters Committee for 30 years has helped reporters 
who encounter legal difficulties in covering and gathering the 
news. We run a hotline for reporters who face all types of 
legal obstacles in their quest to gather the news, and we get 
more than 3,000 calls a year to our hotline, and by far the 
greatest number of calls to our hotline concern the inability 
of reporters to gain access to agency records.
    When the Government fails to meet its freedom of 
information requirements, reporters are greatly inhibited in 
their ability to report the news to the public. We believe that 
Congress was very forward-thinking and insightful in its 
passage of the EFOIA, and it is an act that has greatly 
enhanced the public's ability to gain access to Government 
information. Almost every agency, as you heard already today, 
now has a Web site that can be visited by the public.
    Agency freedom of information officers have worked fairly 
hard to identify data bases that could be useful to the public 
and make them available online. Reporters routinely use these 
Web sites rather than contact agencies directly for much of the 
stories that they need to write.
    Reporters that we have talked to in preparing for testimony 
today have also said that Government Web sites are getting more 
and more sophisticated, and, as a result, they are easier to 
use and more useful, so the testimony that we give today is 
meant in no way to disparage this enormously beneficial law 
that came into being largely because this subcommittee secured 
its safe passage through the House of Representatives. Please 
don't construe our remarks on the implementation of this law as 
ingratitude, because we remember when there were no Web sites 
to visit. But Web sites are not the only answer to this issue.
    The authors of this act intended not only to add 
requirements for providing information electronically, but also 
to overcome the most serious obstacles preventing the public's 
successful enjoyment of a Federal FOI program. These obstacles 
are, first of all, the lengthy delays and, second, the over-
broad interpretation of the privacy exemptions that have come 
to represent a virtual shut-out of information if it personally 
identifies an individual.
    Let me first talk about the delays.
    Many reporters simply will not use the FOI Act, claiming 
that they cannot get information in time for it to be useful. 
This is very unfortunate. If reporters who cover the Federal 
Government must rely on the recollections of Government 
officials or upon leaks of information and not on Government 
records, they cannot adequately report the news to the public.
    Multi-track processing and expedited review that were in 
the EFOIA amendments are sensible provisions and they can be 
effective. We have talked to reporters who have sometimes 
qualified for expedited review of their request when timeliness 
was very important in getting stories to the public.
    But what was intended to be a major tradeoff--and I 
remember vividly when the discussions were going on back in 
1995 and 1996 giving--the tradeoff that gives agencies 
lengthier deadlines for processing requests but eliminating 
their ability to routinely invoke extraordinary circumstances 
to excuse the delays, those requirements and that tradeoff 
seems to have been merely ignored by most agencies.
    The second thing I'd like to talk about is privacy. The 
first finding in the EFOIA is that the FOI Act is intended to 
establish and enable enforcement of the right of any person to 
obtain access to Government records, subject to exemptions for 
any public or private purpose. That finding was intended to 
limit the Government's unfettered use of the FOI Act's privacy 
exemptions to categorically protect information concerning 
named individuals.
    Legal privacy protection has always involved a balance 
between the intrusion on personal privacy and the public's 
interest in disclosure, and agencies had considered that 
balance in determining whether to invoke privacy exemptions.
    Now, the scale was thrown out of balance somewhat in the 
1989 Supreme Court decision that said the only public interest 
that could be considered was the FOIA's core purpose, which it 
said was to reveal the operations and activities of Government. 
We disagree with that finding and that court decision.
    The legislative history to the FOIA states that the finding 
that access is to be for any public or private purpose is 
intended to clear up the misconception of the congressional 
purpose behind enactment of FOIA. In fact, I doubt that anyone 
here remembers, but Senator Moss----
    Mr. Horn. Excuse me right there. It was not Senator Moss, 
it was Representative John Moss. Isn't that correct, everybody 
that knows the history on that.
    Ms. Dalglish. You're right.
    Mr. Horn. And it came out of Government Operations, now 
known as Government Reform. And John Moss was a very vigilant, 
hard-working, focused person----
    Ms. Dalglish. You're absolutely right, Mr. Chairman.
    Mr. Horn [continuing]. Who represented Sacramento, CA, 
basically.
    Ms. Dalglish. OK.
    Mr. Horn. So that's 30 years ago and you probably weren't 
born then, but----
    Ms. Dalglish. I think it was----
    Mr. Horn. I'd appreciate it if you'd change your permanent 
and have staff clean that up.
    Ms. Dalglish. No problem, Mr. Chairman. You completely 
embarrassed me.
    Mr. Horn. It shows that journalists cannot always be right 
about history.
    Ms. Dalglish. And I believe he got started at it in 1955.
    Mr. Horn. Yes. That's right. And he had a good assistant 
who really also had focus.
    OK, proceed.
    Ms. Dalglish. Representative Moss pushed early and hard for 
enactment of the FOIA, and he was prompted to do so in 
frustration over his own inability to get Government 
information about the performance of certain Postal employees. 
He would not be able to get that information today.
    Former Hostage Terry Anderson, who has probably appeared 
before your committee in the past, was told he could not have 
information about his kidnappers without their written release 
because it would violate their privacy. This privacy exemption 
claim was dropped after media exposure, and the information is 
now being withheld because it is classified.
    In Texas, Jack McNamara, the editor of the ``NIMBY News,'' 
could get no information on the former local sheriff who pled 
guilty after Federal law enforcement agents seized his horse 
trailer containing 2,500 pounds of cocaine because disclosure 
would have intruded upon the errant sheriff's privacy.
    In our view, if the public cannot learn about the 
individuals affected by or connected to the Government, it can 
know very little about Government.
    Now, in regard to the use of electronic information, we 
have heard repeatedly from reporters that the value of the data 
bases varies widely; that some agencies are likely to use the 
sites to promote themselves and to explain their missions, and 
that is very useful to the public, in some sense, but the real 
data collected by the Government that could be very useful to 
reporters is being withheld in many circumstances.
    In our assessment, the scientific agencies receive the most 
complimentary endorsements. There were many favorable comments 
about the data available and searchable, for example, on the 
NASA and NOAA sites. The Department of Transportation was 
praised several times for its Web sites and for the 
accessibility of its data.
    One reporter told us that the National Park Service 
actually consulted persons likely to use its Web sites when it 
constructed them.
    But, as I said earlier, Web sites are not the only 
component of compliance with EFOIA. The public needs to be able 
to find the data bases and find the data bases indexed well 
enough to actually be researched, and reporters need to be able 
to talk to the people behind the data.
    Sometimes just a simple question to an agency official will 
mean the difference between a correct and an incorrect 
interpretation of data, but usually the agencies are structured 
to keep most agency personnel who can answer these questions 
out of contact with the public, so if only your FOIA officer 
can answer a question, data interpretation may never occur.
    Now, what we heard the most often was that, in using 
national Government data for local stories, reporters often 
want to interpret data for their own communities. We've heard 
repeatedly that Government information that is in PDF format--
that is, when they just essentially take a photograph of a 
document and post it, but don't allow you to crunch the numbers 
that are in behind the data--this prevents a lot of very 
important reportorial interpretation of this information.
    For example, the Department of Justice has uniform crime 
statistics and could make this raw data available. Instead, it 
is presented in a PDF file and is largely useless to others who 
could crunch the data to describe how crime in their own 
communities compares to crime elsewhere.
    Similarly, from the IRS, a reporter cannot learn from 
posted information how much a given county gives to the Federal 
Government and how much it receives. We were told that the 
military agencies have data bases that are easy to find and are 
well organized, but it is difficult to draw data for individual 
cities.
    There were complaints that agencies such as the Small 
Business Administration possessed data on loans in local 
communities, but that the data does not appear on a Web site.
    There also were complaints that the requirements to post 
frequently requested data are not met, and there was a 
suggestion that frequently requested data should be interpreted 
to encourage posting of data that is requested frequently for 
specific localities.
    For example, if a certain record is requested for 
Tuscaloosa, then Tacoma, then Texarkana, an agency should be 
able to infer that other communities have an interest in 
posting the data for that community, even though maybe only one 
person in each community has requested that information.
    Overall, reporters believed that the more information the 
agency is willing to make available, the more useful the agency 
site, particularly if the information is indexed and readily 
available.
    We appreciate the opportunity to present these views. I 
will definitely correct the transcript so that it is Senator 
John Moss.
    Mr. Horn. Representative John Moss.
    Ms. Dalglish. Representative John Moss.
    Mr. Horn. Yes.
    Ms. Dalglish. And Ms. Daugherty----
    Mr. Horn. I take it you all have the ``Biographical 
Directory of Congress,'' and he will be in there.
    Ms. Dalglish. You know, actually, Representative Moss and 
I--I'm ashamed to admit this--were both inducted into the FOIA 
Hall of Fame in 1996, so I do know better and I apologize.
    [The prepared statement of Ms. Dalglish follows:]

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    Mr. Horn. Let me ask you, on the bottom of page 3, where 
you cite the case of McNamara v. Department of Justice, did 
that ever go up for appeal, or did you----
    Ms. Dalglish. No.
    Mr. Horn. It didn't? So, in other words, you can still----
    Ms. Dalglish. It was a small town editor.
    Mr. Horn. Well, I noticed that. The ``NIMBY News'' editor 
Jack McNamara could get no information on the former local 
sheriff who pled guilty after Federal law enforcement agents 
seized his horse trailer containing 2,500 pounds of cocaine 
because disclosure would have intruded upon the errant 
sheriff's privacy.'' You mean that wasn't appealed, or did they 
change----
    Ms. Dalglish. Ms. Daugherty actually spoke with them.
    Mr. Horn. Really? Go ahead. Identify yourself, if you 
would.
    Ms. Daugherty. I'm Rebecca Daugherty, and I'm the FOI 
Service Center director, and I talked with Mr. McNamara when he 
was trying to get this information. He was unable to appeal the 
case simply because it was financially prohibitive for him to 
do so.
    Mr. Horn. Yes. Well, somebody should have gone in, some 
pivotal, spirited agency, and made a case out of that. That's 
so stupid.
    See, what motivated in my head was, when I was a university 
president, the U.S. Department of Education, did this to both 
Pennsylvania State University and to California State 
University at Long Beach, which I was heading. Here's what they 
did--and when I think of leading a corps of presidents to 
establish the Department, I just couldn't believe the dumbness 
with which they operated. That is, they said, when they looked 
at the theses of both institutions, either master's or doctoral 
dissertations, they said we could not have the public or anyone 
look at those theses unless they had a release from the author 
because his privacy might be hurt.
    You know, that's the dumbest thing I ever heard, because in 
the whole history of higher education the whole purpose of a 
thesis is to do original research, to have it available for 
professors, for the public, for students, for whoever, and yet 
they said, ``Oh, you've got to have a privacy clearance.'' That 
is so dumb I couldn't believe it.
    When I wrote the Secretary a rather hot letter, I got sort 
of a bureaucratic response from--I know--the same guy that did 
the stupidity. But that's why it bothered me when I saw that. I 
thought, ``Boy, that's one I've been through,'' you know, 
because, let's face it, there have been a number of well-known 
figures in our society where they have plagiarized in their 
dissertations or their theses and no one would have discovered 
that if, once the person submitted that thesis and dissertation 
and they know forever it is locked up and no one can see it. 
That's just wrong.
    They should have had a student paper being backed by you. I 
don't know. Do you handle student papers?
    Ms. Dalglish. Our colleagues--we share an office suite with 
the Student Press Law Center, and we often work together, and, 
yes, that's exactly the type of case we would take.
    Mr. Horn. Yes. Well, I wish somebody had taken it, because 
I bet you they still have the policy down there, but I haven't 
heard from it lately.
    OK. Let's move on then, and then we'll get to the rest of 
the questions.
    We have Dr. Patrice McDermott, policy analyst of OMB Watch.
    Mr. McDermott. Thank you, Mr. Chairman.
    Just for the information of people in the room who may not 
know who we are, OMB Watch is a nonprofit----
    Mr. Horn. Yes, tell us, because you do a good job.
    Mr. McDermott. Thank you--research organization that works 
to encourage greater public participation in Federal Government 
decisionmaking and to promote a more open, responsive, and 
accountable Government.
    We have been engaged in the arena of public access to 
public information since the mid-1980's and have issued a 
number of reports in this area, and we appreciate the 
opportunity to testify.
    I am here today to talk about the report that we issued in 
January of this year, which is called, ``The People Armed.'' It 
is a follow-on report to one called, ``Arming the People.''
    Before I go into the details of our study and our 
recommendations, though, I want to note OMB Watch has believed 
that the implementation of EFOIA in a way that is faithful to 
the intent of Congress is fundamental to effective electronic 
Government and governance. It is essential that the public be 
able to understand how the Government organizes itself and its 
records in order for the public to be able to truly hold 
Government accountable.
    Because most Government records, whether digitally created 
or not, are not online and are not searchable, the indexes and 
record locators that are required by the amendments are the 
only key to that information at this point.
    I also want to note, because this is a hearing on the 
impact of technology on access, I want to note the public 
interest community is very concerned about recent and ongoing 
initiatives in both the executive branch and in Congress to 
hollow out the scope of the Freedom of Information Act by 
claiming, with no credible evidence ever presented, that online 
access changes everything and puts us all at terrible, if 
unspecified, risk.
    The very technology that promises more accountability is 
being raised as a specter to limit public knowledge about very 
real threats, risk, and vulnerabilities, most of which can and 
should be remedied.
    Getting to the report--over a 3-month period between 
September 1st and November 31, 1999, OMB Watch examined 144 
unique Federal Government EFOIA Web sites at the 64 agencies 
that are listed on DOJ's FOIA site. I would note, and we do 
note in our report, that 64 agencies are not necessarily the 
sum total of all the agencies that have begun to comply with 
the EFOIA amendments, but it is impossible for us to tell and 
it was certainly impossible for us to go look at every 
Government agency, but there are only 64 listed on DOJ's site, 
and there are very many, many more Government agencies.
    In each case, we searched for the existence and 
completeness of the four major categories of information that 
you noted in your introduction that are required under the 1996 
EFOIA amendments. In all cases, we approached the Web sites 
from the prospective of an average member of the public 
searching for information.
    I would note that we have done this report twice now 
because, Mr. Chairman, as you have noted, the administration 
has not been paying attention to the details and there has been 
no other reporting done on the implementation. I do know that 
GAO is considering doing a report Government-wide.
    Mr. Chairman, you and Mr. Ose also have identified many of 
the problems that the public has with finding either Freedom of 
Information Act information or, more specifically, Government 
records online, and I would note that there is a difference 
between Government records and generic Government information, 
which the agencies are very enthusiastically putting online--
reports and all sorts of things.
    Our study indicates that, overall, agency compliance with 
EFOIA amendments continues to be overwhelmingly inadequate, and 
we present four overriding reasons for this conclusion.
    The first is that Congress still has not provided the 
necessary funding to carry out the implementation of the 
amendments. OMB still has not provided adequate guidance or 
assistance to agencies during the implementation process.
    No. 3, the encouragement to compliance, which the 
legislators intended to be vested in the Department of Justice, 
has been insufficient. We do agree and we do note that DOJ has 
provided excellent training and information on how to meet the 
requirements of the amendment, but this is clearly not 
sufficient, given the overall inadequacy of compliance 
Government-wide.
    Finally, the fourth reason is that agencies have yet to 
make public access to Government information for accountability 
a priority.
    When we released the report, we had four major 
recommendations. The first of these is that OMB must provide 
better guidance and support to agencies by articulating exactly 
what information, as indicated in the amendments and the 
legislative history, must be included on agency Web sites to be 
in compliance, and by creating templates for consistent 
language and format Government-wide.
    Pursuant to Mr. Ose's question and to yours, it is not 
possible to consistently find, by using a single format or a 
single template, FOIA information on agency Web sites.
    OMB needs to establish a clear definition of what 
constitutes a repeatedly requested record and, most 
importantly, they need to explain how EFOIA fits into the 
larger framework of Federal information policy.
    OMB should follow what it has done in the area of privacy 
on agency Web sites and provide leadership in the area of 
access.
    In regard to this first recommendation on OMB, we commend 
OMB for finally recognizing in its April 2000, proposed 
revisions to Circular A-130, the significant problems with its 
memorandum M-9809, which told agencies that a ``GILS--'' or 
Government Information Locator Service--``presence was 
sufficient to comply with the law.''
    Because, as we have reported elsewhere, OMB has been 
dilatory in its treatment of the GILS mandate in the 1995 
Paperwork Reduction Act, most agencies have no or no useful 
GILS present; thus, following OMB's recommendation on this 
matter has put some agencies out of compliance with the 
statute.
    Our second major recommendation is that agencies' 
information must be better organized to make locating records 
online a user-friendly experience.
    Third, enforcement mechanisms for agency noncompliance must 
be established immediately. Currently, agencies that do not 
meet the requirements outlined in the EFOIA amendments are 
neither identified nor penalized for noncompliance.
    Fourth, Congress must provide regular oversight. Since the 
passage of the amendments, there has been only one other 
hearing on the implementation, and that was yours, Mr. 
Chairman. We commend you for that.
    We also had five lesser recommendations.
    Agencies that have decentralized responsibility for EFOIA 
implementation must provide a clear procedure for 
implementation in order to ensure consistency across the 
agency. There are a number of major agencies that have multiple 
sites and have decentralized it to their divisions, and it is 
very, very inconsistent.
    Agencies must make categories of EFOIA compliance, 
handbooks, indexes, repeatedly requested records easily 
identifiable online and linked from one spot.
    All agencies should follow the lead of those that provide 
forums for submitting FOIA requests online.
    All agencies should provide access to their information in 
text only, as well as graphics versions, for users without 
access to high-tech equipment.
    And, fifth--where we agree with OMB--the goal of EFOIA 
should be to make so much information publicly available online 
that Freedom of Information Act requests become an avenue of 
last resort.
    Thank you, and I will be happy to answer any questions that 
you might have.
    Mr. Horn. Thank you. That's a very well-organized 
presentation and you make some very good suggestions.
    [The prepared statement of Ms. McDermott follows:]

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    Mr. Horn. Mr. Ian Marquand is the Freedom of Information 
Chair for the Society of Professional Journalists. We are glad 
to have you here.
    Mr. Marquand. Thank you, Mr. Chairman. And, just for the 
record, it is Ian Marquand.
    I would like to thank my professional colleagues at the 
Reporters Committee and OMB Watch for the fine work they do. 
The Society of Professional Journalists is largely a volunteer 
organization and I am a volunteer committee Chair.
    I do want to note, just in deference to the committee, that 
not only is the late Representative Moss in our FOIA Hall of 
Fame and not only is Lucy Dalglish in our FOIA Hall of Fame, 
but also Samuel Archibald, who was the chief of staff for 
Representative Moss, and I believe Representative Moss was your 
predecessor. We also have Senators Leahy and Brown in our Hall 
of Fame that sponsored the EFOIA legislation, and we thank you 
for your help in getting that passed.
    FOIA is for all Americans, and it is pretty apparent that 
Americans use the law. In 1998, SPJ members in California 
conducted what I believe is the only public opinion poll on 
access to government records, and, even though it was a poll on 
State records, not Federal records, we found it was an 
overwhelming number of those surveyed favored increased and as 
much access to government records as possible. We have no 
reason to doubt they would feel the same way about Federal 
records.
    However, a recent ``Washington Monthly'' article by Michael 
Doyle noted that journalists account for a very small 
percentage of FOIA requests, and we wonder why that is. I think 
the No. 1 reason, as Lucy noted, is time. It takes a long time 
to get requests fulfilled.
    A television managing editor wrote me recently to say, ``If 
I have to file a FOIA request, I eliminate any hope of that 
information for New York stories I will file in the near 
future. Anything that would cut down the required response time 
would help.''
    In short, it appears that when reporters need information 
from Federal agencies, they may be using personal contacts 
rather than FOIA.
    Now, we do appreciate the expedited request portion of 
EFOIA. Some agencies do appear responsive to those expedited 
requests. For example, ``El Nuevo Dia,'' Puerto Rico's largest-
circulation daily newspaper, was able to obtain expedited 
processing for many of the records it requested about the 
Navy's live ammunition practice on the Island of Vieques. 
Expedited requests may enable a news organization with urgent 
FOIA requests to obtain processing ahead of the backlog; 
however, the rate of processing still takes far longer than the 
timeframe anticipated by Congress.
    In ``El Nuevo Dia's'' case, many of the records requests 
granted expedited processing still were not processed until 3 
months to over a year later.
    The Internet should make time delays less of an issue and 
put information and documents into the hands of anyone with 
access to a computer, but it is clear that implementation of 
EFOIA is an unfinished story.
    My National Society president, Kyle Neideprun, sent me 
this: ``The Society appreciates the potential of EFOIA, but 
realizes now, through the experience of working journalists, 
that the reach of the law is limited.''
    Many agencies, in an attempt to appear in compliance, are 
simply posting anything and everything an agency produces, 
without any particular logic. The information being posted also 
is not reliable, and in some instances it is inaccurate.
    A case in point, the U.S. Environmental Protection Agency 
posts scores of data bases. Air quality data is posted. In at 
least one instance, the data indicated that Indiana had worse 
air quality readings than southern California. A reporter 
calling up the data would have drawn such a conclusion, but it 
would have been incorrect. A check going back several calls to 
find the employee responsible for posting the data would 
indicate that the data isn't posted with qualifiers--the 
footnotes to explain why such a comparison would have been 
flawed. EPA officials told us it is not their responsibility to 
make sure the data is read correctly, only that it appears.
    In 1998, SPJ member Jennifer LaFloor, then working for the 
``San Jose Mercury News,'' wrote an article for our national 
magazine, ``Quill,'' and outlined many of the same concerns 
that Ms. McDermott's organization has followed up with this 
year, namely that agencies were not implementing EFOIA 
completely. We have a copy of that article for your review.
    I did make an electronic query of journalists in 
preparation for today's hearing. I also got a complaint about 
PDF file formats from a journalist in Idaho. Says this 
journalist, ``PDF files make it uniquely difficult to analyze 
information in data bases or spreadsheets.'' He pleads that PDF 
files be made available in text format.
    I did learn from a reporter in my home State of Montana 
that persistence with agencies can pay off. When this reporter 
was told by Yellowstone Park and the U.S. Forest Service that 
his request for data bases could not be fulfilled, he kept 
asking. He even went to the software provider in one instance. 
Both entities eventually provided the information in usable 
electronic formats, as the law requires.
    Now, the very access to information EFOIA makes available 
is also creating fear in some sectors of Government. Now, SPJ 
has helped sound the alarm on Federal proposals which we 
believe would erode FOIA and impair the public's right to know. 
I would like to submit a number of our FOI alerts from the past 
year, including alerts on medical privacy rules at HHS, worst-
case scenario regulations at EPA, and reports on spending by 
the intelligence community.
    Mr. Horn. Without objection, they will be put at this point 
in the record.
    Mr. Marquand. And, finally, I would be remiss--and I thank 
you, Mr. Chairman, for bringing up H.R. 4163, the Taxpayer Bill 
of Rights, passed in the House, now awaiting action in the 
Senate, a bill that, for all of its good intentions, appears to 
us to make the Internal Revenue Service exempt from the Federal 
FOIA.
    In short, Mr. Chairman, Congress has set a high standard. 
On behalf of my organization, I urge you to use your authority 
to ensure that executive agencies meet that high standard.
    And I also would be remiss to say we need the Federal 
Government to set a good example for the States [sic], because 
we are finding many, many problems in the States that a law 
such as FOIA would probably take care of.
    My full written testimony is at your disposal.
    Thank you very much.
    Mr. Horn. A wonderfully written statement, and we 
appreciate that input, and especially from a practicing 
journalist.
    [The prepared statement of Mr. Marquand follows:]

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    Mr. Horn. We have a vote about to come. It started at 3:32. 
It is 15 minutes, so I'm going to have to leave in a recess, 
but let me ask our friends in the first panel--Mr. Gotbaum, you 
might want to join us. Mr. McIntyre, you might want to join us. 
Then we can answer some of the questions here. Mr. Posner, you 
might want to join us.
    Some comments were made about the role of the OMB, for 
example. Maybe we can get an answer right now.
    Let me, in the meantime, say, are you familiar--and this 
would be panel one and two--are you familiar with the 
Department of Defense's 1998 policy change that limited the 
Department's Internet documents to those of general public 
interest? Many who use the Electronic Freedom of Information 
Act to obtain information have said that a number of documents 
were pulled from the DOD Web site. What justifies a decision 
such as this that appears to go against the Electronic Freedom 
of Information Act? Do we have any knowledge on that one way or 
the other?
    Is Mr. McIntyre still here?
    [No response.]
    Mr. Horn. Well, we'll send it to him to put the answer in 
the record on that.
    There were also some of the comments of members on panel 
two as to the degree to which OMB ought to be doing more in the 
administration of this law. I don't know if you listened to 
that, but if you have any remarks, let us know.
    Mr. Gotbaum. If you'd like, Mr. Chairman, we'd be happy to 
submit an answer for the record.
    Mr. Horn. You'd like to submit? OK. Without objection, the 
statement from the representatives of the Office of Management 
and Budget will be put in the record at this point.
    [The information referred to follows:]

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    Mr. Horn. What else did we have?
    Ms. Dalglish. Do we get to respond to their responses?
    Mr. Horn. Well, go ahead. Maybe we'll add their responses 
to your responses. We'll keep the record open for all of you, 
so you might want to boil down some of yours and ask the 
question, and then we'll get an answer out of OMB.
    Mr. Posner. And, Mr. Chairman, on behalf of the Department 
of Justice, we will be submitting a number of written comments, 
as well.
    Mr. Horn. OK. We'd welcome that, and we appreciate it, 
having your cooperation.
    So you want to answer these questions, then, and you'd just 
as soon go back to the office, or what?
    Mr. Gotbaum. Mr. Chairman, partly because of time we'd be 
happy to.
    Mr. Horn. Yes. Well, we'll send you some of the questions, 
and just give us your best judgment on it. We'll put it in the 
record at this point.
    I have to run for a vote, so I want to thank the staff that 
worked on this hearing: J. Russell George, staff director, 
chief counsel, standing up there; Heather Bailey, staff 
professional working with this particular issue; Bonnie Heald, 
director of communications; Bryan Sisk, clerk; Will Ackerly, 
intern; Chris Dollar, intern; Meg Kinnard, intern. We thank you 
all for that. The minority staff: Trey Henderson, counsel; and 
Jean Gosa, minority clerk; and the official reporter of debates 
is Art Emmerson.
    We thank you all. We are adjourned.
    [Whereupon, at 3:43 p.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. Jim Turner and additional 
information submitted for the hearing record follows:]

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