[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
   IMPLEMENTING FOIA--DOES THE BUSH ADMINISTRATION'S EXECUTIVE ORDER 
                          IMPROVE PROCESSING?

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
                      FINANCE, AND ACCOUNTABILITY

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 26, 2006

                               __________

                           Serial No. 109-257

                               __________

       Printed for the use of the Committee on Government Reform


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


                     U.S. GOVERNMENT PRINTING OFFICE
44-767 PDF                 WASHINGTON DC:  2008
---------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (Independent)
BRIAN P. BILBRAY, California

                      David Marin, Staff Director
                Lawrence Halloran, Deputy Staff Director
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

   Subcommittee on Government Management, Finance, and Accountability

              TODD RUSSELL PLATTS, Pennsylvania, Chairman
VIRGINIA FOXX, North Carolina        EDOLPHUS TOWNS, New York
TOM DAVIS, Virginia                  MAJOR R. OWENS, New York
GIL GUTKNECHT, Minnesota             PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana              CAROLYN B. MALONEY, New York
JOHN J. DUNCAN, Jr., Tennessee

                               Ex Officio
                      HENRY A. WAXMAN, California

                     Mike Hettinger, Staff Director
               Tabetha Mueller, Professional Staff Member
                          Erin Phillips, Clerk
            Adam Bordes, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 26, 2006....................................     1
Statement of:
    Leahy, Hon. Patrick, a U.S. Senator from the State of 
      Vermont; Hon. John C. Cornyn, a U.S. Senator from the State 
      of Texas; and Hon. Brad Sherman, a Representative in 
      Congress from the State of California......................     5
        Cornyn, Hon. John C......................................    14
        Leahy, Hon. Patrick......................................     5
        Sherman, Hon. Brad.......................................    28
    Metcalfe, Dan, Director, Office of Information and Privacy, 
      U.S. Department of Justice; and Linda Koontz, Director, 
      Information Management Issues, Government Accountability 
      Office.....................................................    34
        Koontz, Linda............................................    46
        Metcalfe, Dan............................................    34
    Rush, Tonda, public policy director, National Newspaper 
      Association; and Patrice McDermott, director, 
      OpenTheGovernment.org......................................   129
        McDermott, Patrice.......................................   156
        Rush, Tonda..............................................   129
Letters, statements, etc., submitted for the record by:
    Cornyn, Hon. John C., a U.S. Senator from the State of Texas, 
      prepared statement of......................................    17
    Koontz, Linda, Director, Information Management Issues, 
      Government Accountability Office, prepared statement of....    48
    Leahy, Hon. Patrick, a U.S. Senator from the State of 
      Vermont, prepared statement of.............................     8
    McDermott, Patrice, director, OpenTheGovernment.org, prepared 
      statement of...............................................   159
    Metcalfe, Dan, Director, Office of Information and Privacy, 
      U.S. Department of Justice, prepared statement of..........    37
    Rush, Tonda, public policy director, National Newspaper 
      Association, prepared statement of.........................   132
    Sherman, Hon. Brad, a Representative in Congress from the 
      State of California, prepared statement of.................    30


   IMPLEMENTING FOIA--DOES THE BUSH ADMINISTRATION'S EXECUTIVE ORDER 
                          IMPROVE PROCESSING?

                              ----------                              


                        WEDNESDAY, JULY 26, 2006

                  House of Representatives,
Subcommittee on Government Management, Finance, and 
                                    Accountability,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m., in 
room 2247, Rayburn House Office Building, Hon. Todd R. Platts 
(chairman of the committee) presiding.
    Present: Representative Platts, Towns, Waxman, Gutknecht, 
Maloney, and Duncan.
    Also present: Representative Sanders.
    Staff present: Mike Hettinger, staff director; Tabetha 
Mueller, professional staff member; Dave Rebich, detailee; Erin 
Phillips, clerk; Brad Hoffer, intern; Adam Bordes and Anna 
Laitin, minority professional staff members; Earley Green, 
minority chief clerk; Jean Gosa, minority assistant clerk.
    Mr. Platts. A quorum being present, this hearing of the 
Government Reform Subcommittee on Government Management, 
Finance, and Accountability will come to order.
    The Freedom of Information Act [FOIA], was signed into law 
40 years ago this month in July 1966. Enacted after 11 years of 
debate, FOIA established a statutory right of public access to 
executive branch information. FOIA provides that any person has 
a right to obtain Federal agency records. Originally, the act 
included nine categories of information protected from 
disclosures, and Congress has added additional exceptions over 
time.
    Balancing the need for open Government with the need to 
protect information vital to National Security and personal 
privacy is a constant struggle. Federal departments and 
agencies are operating in the post-9/11 information age and 
face 21st century security, information management, and 
resource challenges. As we seek to achieve this balance, we 
must remember the words of Thomas Jefferson who said, 
``Information is the currency of democracy,'' for it is an 
essential tool to ensure that the citizens of this Nation have 
access to information in the way Jefferson envisioned.
    Last May, this subcommittee held the first hearing in the 
House of Representatives on FOIA implementation in over 5 
years. Today serves as an important followup to that hearing. 
In response to legislative proposals introduced last year in 
the House and Senate as well as the oversight conducted by this 
committee, President issued Executive Order 13392, entitled 
Improving Agency Disclosure of Information, on December 14, 
2005.
    This document seeks to improve the overall processing of 
FOIA requests, creating a more citizen-centered and results-
oriented approach to information policy. Specifically, the 
Executive order requires agencies to develop FOIA improvement 
plans, designate chief FOIA officers, and establish in-house 
FOIA requester centers. The results of the initial phase of the 
order's implementation were reported to the Attorney General 
and the Office of Management and Budget on June 14, 2006.
    This hearing will give the subcommittee members an 
opportunity to hear from key members who have introduced FOIA-
related legislation as well as the Department of Justice on 
progress made implementing the Executive order and the 
Government Accountability Office which has reviewed the initial 
FOIA improvement plans. Finally, the subcommittee will also 
hear from FOIA requestors on their views of how the Executive 
order will improve FOIA processing and access to information.
    We have three panels of distinguished witnesses. On our 
first panel, we are especially delighted to have with us three 
individuals who have really led the charge here when it comes 
to improving our FOIA process: the Honorable Patrick Leahy, 
U.S. Senator from Vermont and ranking member of the Senate 
Judiciary Committee; the Honorable John Cornyn, U.S. Senator 
from Texas; and the Honorable Brad Sherman, Member of Congress, 
the 27th District of California.
    Our second panel will include Dan Metcalfe, Director of the 
Department of Justice's Office of Information and Privacy, and 
Ms. Linda Koontz, Director of Information Management Issues for 
the Government Accountability Office.
    Our last panel will include Ms. Tonda Rush, public policy 
director at the National Newspaper Association, and Patrice 
McDermott, director of OpenTheGovernment.Org.
    We certainly thank all of our witnesses and again our first 
panelists for your time in being with us, and we look forward 
to your testimony.
    With that, I will yield to the ranking member from New 
York, Mr. Towns, for the purpose of an opening statement.
    Mr. Towns. Thank you very much, Mr. Chairman.
    What I would like to do is to yield to the ranking member 
of the full committee, Mr. Waxman.
    Mr. Platts. Mr. Waxman is recognized.
    Mr. Waxman. Well, thank you very much for yielding to me, 
Mr. Towns, and Mr. Chairman, for holding today's hearing. This 
is our second hearing on the Freedom of Information Act, and I 
am pleased that the subcommittee is continuing its oversight of 
this vital law that ensures public access to Government 
information.
    Open Government is a bedrock of our democracy. Yet over the 
past 4 years, we have witnessed an unprecedented assault on the 
Freedom of Information Act and our Nation's other open 
Government laws. Administration officials have undermined the 
Nation's Sunshine Laws while simultaneously expanding the power 
of Government to act in the shadows. The presumption of 
disclosure under the Freedom of Information Act has been 
overturned. Public access to Presidential records has been 
curtailed. Classification and pseudo-classifications are on the 
rise. These trends are ominous.
    In December 2005, President Bush took a promising step by 
signing an Executive order calling on agencies to improve the 
operation of the Freedom of Information Act and to develop a 
citizen-centered approach that will speed up response times and 
reduce backlogs. This Executive order is certainly a step in 
the right direction. If implemented properly, it could address 
some of the problems faced by FOIA requestors, but even if it 
is fully implemented, the Executive order will not address all 
of FOIA's problems.
    Our first panel today is composed of a bipartisan group of 
Senators and a Representative who have taken important steps to 
improve the operations of the Freedom of Information Act. They 
have introduced legislation that aims to speed up agency 
responses to FOIA requests and to fix weaknesses in the act, 
and I hope that we will be able to work as a committee to 
consider their legislation.
    But, the Bush administration's wholesale assault on open 
Government demands that Congress pass a comprehensive response, 
and that is why I introduced the Restore Open Government Act. 
This legislation restores the presumption that Government 
operations should be transparent. It overturns President Bush's 
Executive order curtailing public access to Presidential 
records, prohibits the executive branch from creating secret 
Presidential advisory committees, and eliminates unnecessary 
secrecy at the Department of Homeland Security. In addition, it 
eliminates unnecessary pseudo-classifications that restrict 
public disclosure of Government records.
    Government secrecy has a high cost. It breeds arrogance and 
abuse of power while Sunshine fosters scrutiny and responsible 
Government. That is why it is so important that this committee 
act on the Restore Open Government Act.
    Chairman Platts, I want to thank you again for holding this 
hearing and for your continued interest in open Government and 
the Freedom of Information Act. I yield back my time, and I 
appreciate Mr. Towns, the ranking member, yielding to me the 
opportunity to go first.
    Mr. Platts. Thank you, Mr. Waxman.
    I yield back to Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman, for holding 
this hearing on legislative proposals to improve our current 
FOIA laws and increase Government transparency for all 
citizens. I welcome our witnesses and especially appreciate the 
efforts of our distinguished colleagues from both chambers, who 
are joining us today.
    The cornerstone to a free and democratic society is reliant 
upon the principle of public access to governmental activities. 
As I have said many times, open access to Government 
information and records serve as a counterweight to ill timed 
or uninformed Government decisions and ensures that 
decisionmakers are held accountable for their actions.
    As FOIA celebrates its 40th birthday--so let me say to 
FOIA, happy birthday--new challenges concerning the protection 
of National Security information, limited agency resources, and 
volumes of FOIA requests are increasing the amount of time 
taken by agencies to comply. These factors contributed to a new 
25 percent increase in the number of backlogged FOIA requests 
Government-wide in 2005 when compared to the previous year. 
Although the administration issued Executive Order 13392 in 
order to improve upon current results, it remains unclear if it 
will strengthen agency compliance or reduce the number of 
requests resulting in litigation or administrative challenges. 
This outcome, I believe, is symptomatic of the overzealous 
safeguarding of information that has no implication on our 
Government's National Security or law enforcement activities.
    In short, extensive backlogs and protracted litigation is 
not a model for open or transparent Government and remedies 
must be put in place to reverse these trends. It is my hope, 
Mr. Chairman, that our witnesses today can bring clarity to 
these issues and offer us an efficient blueprint to improve the 
FOIA process.
    So, on that note, Mr. Chairman, I conclude my statement and 
say that I really appreciate the commitment and dedication that 
you have shown to this issue because, as you know, the American 
people are concerned.
    On that note, I yield back.
    Mr. Platts. Thank you, Mr. Towns.
    I yield to the gentleman from Minnesota for an opening 
statement.
    Mr. Gutknecht. Mr. Chairman, I will be very brief, but I 
would concur with my colleague that I am delighted we are 
having these hearings because I think this is something that is 
fundamental to our American democracy. It is one thing to have 
a Freedom of Information Act; it is another thing to make sure 
it is implemented in the way that Congress intended.
    I want to share one real quick example from my District, 
and this has been a frustration for over a year now, where you 
have one particular U.S. Marshal's Office who will not allow a 
photograph of someone who has been convicted, not someone who 
has been charged but convicted. So we have different 
interpretations of what the rights and responsibilities are 
between various jurisdictions.
    This is a multidimensional kind of issue, and I really do 
applaud you for having these hearings. I think it is clearly a 
congressional responsibility to do what we can, to see that not 
only do we have freedom of information but more importantly, 
that information ultimately is shared with the public in a very 
reasonable and responsible way.
    Thank you.
    Mr. Platts. Thank you, Mr. Gutknecht.
    We are pleased to be joined by a member of the full 
committee, the gentleman from Vermont, Mr. Sanders.
    Mr. Sanders. Thank you very much, Mr. Chairman, and thank 
you for allowing me to sit in on this hearing today.
    I am especially pleased to be here today to welcome my 
colleague from the State of Vermont, Senator Leahy. I think, in 
Vermont, we understand that Senator Leahy has been one of the 
leading congressional champions of open Government and the 
right of the people to know, which in fact is the cornerstone 
of what American democracy is about, and we very much applaud 
his efforts. We are delighted to see Senator Cornyn here as 
well.
    I think there is a bipartisan concern in this country, 
right here in Congress and on this committee, that while we 
hear a whole lot of talk in Congress and in the White House 
about freedom, freedom, freedom, you can't have a free society 
unless the people know what is going on. It is a very serious 
problem when people of this country try to secure information 
about the goings-on of their own Government and cannot get that 
information. That is not what freedom is about, and that is not 
what democracy is about, and that is an issue we have to 
address as we celebrate the 40th Anniversary of FOIA.
    Thank you again, Mr. Chairman. I am delighted to welcome 
our guests.
    Mr. Platts. Thank you, Mr. Sanders.
    We appreciate our colleagues' patience while we had our 
statements. We are again very pleased to have our three 
distinguished colleagues with us and again thank each of you 
for your leadership on this issue in advancing the cause of 
freedom of information and ensuring that our citizens know what 
their Government is up to.
    Senator Leahy, we will begin with you.

STATEMENTS OF HON. PATRICK LEAHY, A U.S. SENATOR FROM THE STATE 
OF VERMONT; HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
TEXAS; AND HON. BRAD SHERMAN, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

                STATEMENT OF HON. PATRICK LEAHY

    Senator Leahy. Thank you, Mr. Chairman. First off, let me 
thank you for doing this. We mentioned and you and I chatted 
briefly, privately, about schedules. We know what everybody's 
schedules are like, and to take time for this, I think it is 
very important.
    My neighbor from New York, Mr. Towns, I appreciate very 
much your very strong statement, and that meant a lot. Of 
course, I have my whole House delegation here from Vermont with 
Congressman Sanders. [Laughter.]
    We appreciate his efforts. I would note that when he was 
mayor of our largest city, he didn't need a FOIA law. He ran 
the most open administration that the city had ever seen. So he 
is committed.
    Mr. Gutknecht, thank you very much for what you said.
    The Freedom of Information Act is something I have talked 
about, I think, ever since I came to the Senate. I am pleased 
to be here with, of course, Representative Sherman and my 
distinguished friend, Senator John Cornyn from Texas.
    Now I always worry when I say nice things about John Cornyn 
on these, that the State Republican Party is going to have a 
recall petition on him, and that is not my intention for saying 
it. He has been a great partner and ally in our efforts to 
strengthen and improve our open Government laws.
    In open Government laws, it doesn't make any difference 
whether you have a Republican or Democratic administration, you 
want open Government. The two of us have tried to demonstrate 
to our other colleagues that this is not a partisan issue. It 
is a bipartisan partnership. We have co-sponsored three FOIA 
bills. One has passed the Senate; another has been reported out 
of the Judiciary Committee. So we are going to keep working on 
this.
    Fulfillment of the public's right to know ebbs and flows. 
As you mentioned with the happy birthday, it is the 40th 
Anniversary, and right now, FOIA is under heavy assault. An 
overly broad FOIA waiver in the charter for the Department of 
Homeland Security, that is the single largest rollback of FOIA 
in history. We have seen the muzzling of Government scientists 
on issues from climate change to drug approvals, shifting the 
burden of proof in the FOIA process from Federal agencies to 
the public, expanding use of Government secrecy stamps, threats 
of criminal prosecutions of journalists, and undermining 
whistleblowers even though we have laws for them.
    Those are troublesome when you want to have open 
Government, but I think chief among the problems is the major 
delay encountered by FOIA requestors. According to a recent 
report on FOIA by the National Security Archive, the oldest 
outstanding FOIA request dates back to 1989. To put that in 
perspective, we had a Soviet Union then. That was before its 
collapse. In fact, according to the report, the oldest of these 
outstanding FOIA requests was submitted to the Defense 
Department in March 1989, by a graduate student. The graduate 
student is now a tenured law professors.
    Now these are most extreme cases, of course, but we have 
Federal agencies operating under a 2001 directive from former 
Attorney General Ashcroft that gives them the upper hand in 
FOIA requests, reversing the presumption of compliance 
directive issued earlier by Attorney General Reno. Then you 
have exceptions. Under Section (b)(3) of FOIA, Congress can 
exempt additional records from FOIA by statute. But often, the 
language when we exempt this is buried so in legislation that 
nobody in the public, including some Members of both bodies 
that vote on it, ever see it until after the fact.
    We have seen the placements of fees or limits on the fee 
waivers afforded to journalists. The National Security Archive, 
an independent non-governmental research group and a valued 
information clearinghouse for the press, now we have the CIA 
rescinding the search fee waivers for them.
    President Bush issued Executive Order 13392 in December of 
last year. I see it as a constructive first step, but it is not 
the comprehensive reform we have.
    FOIA is 40 years young, but the law's values of openness 
and transparency in Government are timeless in their importance 
of Government of, by, and for the people. No generation, no 
generation can take this for granted. I think we have 
responsibility to leave to each generation a stronger FOIA. 
Incidentally, most of what I have said today about the need for 
a stronger FOIA is exactly what I said when it was a Democratic 
administration. An open Government is a better government.
    Thank you.
    I want to ask permission for my whole statement to be part 
of the record.
    [The prepared statement of Senator Patrick Leahy follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.001
    
    [GRAPHIC] [TIFF OMITTED] T4767.002
    
    [GRAPHIC] [TIFF OMITTED] T4767.003
    
    [GRAPHIC] [TIFF OMITTED] T4767.004
    
    [GRAPHIC] [TIFF OMITTED] T4767.005
    
    [GRAPHIC] [TIFF OMITTED] T4767.006
    
    Mr. Platts. Senator Leahy, if you would like to complete 
it, that shouldn't have been read.
    Senator Leahy. I will just put it in the record.
    Mr. Platts. OK, without objection.
    Senator Leahy. I know Senator Cornyn has a tough schedule 
this afternoon too, and I don't want hold him up any longer.
    Mr. Platts. I just want to comment that one of the parts of 
your statement is a presumption of the burden of proof. 
Clearly, the intent is supposed to be on the Government in 
withholding, not on the public trying to prove the case, and I 
think your statement is right on point.
    Senator Leahy. Thank you very much.
    Mr. Platts. Thank you, Senator Leahy.
    Senator Cornyn.

                 STATEMENT OF HON. JOHN CORNYN

    Senator Cornyn. Chairman Platts and Ranking Member Towns 
and to the entire committee, thank you for allowing me to come 
join you today in this oversight hearing. This is an important 
subject, and I appreciate the opportunity you have given me to 
testify.
    When I came to Washington about 3\1/2\ years ago, coming as 
a former Attorney General of my State and someone responsible 
for enforcing the open Government laws and a firm believer in 
the benefits of transparent Government and Sunshine, I looked 
for an ally in the Senate and was pleased to see on the 
Judiciary Committee, the Ranking Member Senator Leahy who, as 
was pointed out, has a long and distinguished record when it 
comes to enforcement of our open Government laws.
    To me, it represented a great opportunity for us to work in 
a bipartisan way on a principle that we feel very seriously 
about. I want to congratulate him publicly on his leadership in 
this area, and I am pleased to be able to work with him now to 
see if we can continue to advance this cause through the 
Judiciary Committee and the U.S. Senate.
    Freedom of information and openness in Government are among 
the most fundamental principles of our Government. The 
Declaration of Independence makes clear that our inalienable 
right to life, liberty, and the pursuit of happiness may only 
be secured when ``Governments are instituted among men, 
deriving their just powers from the consent of the governed.'' 
It is clear that consent, which is the fundamental foundation 
for legitimacy of our Government and our laws should be 
informed consent.
    I associate myself with the comments made by members of the 
committee and Senator Leahy, and I am sure Congressman Sherman 
will make, that this is really fundamental to who we are and to 
give the American people the opportunity to have a voice. After 
all, we work for them, and there is no way for them to know the 
kind of job we are doing unless they get access to information 
to make an informed judgment.
    Because of the belief in these shared values, Senator Leahy 
and I introduced the Open Government Act which is designed to 
ensure that our open Government laws remain robust. It contains 
more than a dozen substantive provisions that are intended to 
achieve four important objectives: No. 1, to strengthen the 
Freedom of Information Act and to close loopholes; second, to 
help requestors obtain timely responses to their requests, 
hopefully more than a 1989 request still pending; we need to do 
better; third, ensure that agencies have strong incentives to 
act on FOIA requests in a timely manner; and fourth, to provide 
FOIA officials with the tools they need to ensure that our 
Government remains open and accessible.
    Now while I have found that these goals in our legislation 
are certainly something we would all agree are very positive, 
some of the folks back home in Texas when I told them what we 
are trying to do up here in Washington, they say, what is the 
big deal? We assume that the law would be the same in the 
Nation's Capital and across this country as it is in our 
States. So they view many of these provisions, which are even 
controversial here in Washington, as things that should be in 
the fundamental law of the land.
    This legislation reinforces our belief that FOIA 
establishes the presumption of openness that was mentioned a 
moment ago and that our Government is based not on the need to 
know but on the fundamental right to know, and I believe it is 
important to pass the legislation.
    There has been some discussion about the President's 
Executive order, and I am pleased that the President has seen 
fit to elevate this issue by the Executive order, but I don't 
believe that is a substitute for the kind of legislation that 
Senator Leahy and I have introduced and that this committee 
will consider as well.
    In conclusion, Mr. Chairman, I am under no illusions about 
the real and legitimate obstacles that some in the Government 
face when implementing FOIA policy, and I doubt anyone has it 
harder than the FOIA officer quoted in the Department of 
Defense report who, when asked to indicate obstacles that 
impede processing, wrote, ``Unique location in Baghdad, Iraq. 
Mail processing slow, slow IT connections, lack of fax 
capability and ground transportation is dangerous.''
    So not all resistance to open Government and freedom of 
information requests are borne out of malice. Sometimes 
conditions on the ground make it difficult to comply, but it is 
our job to make sure not only that the laws are sufficient to 
provide that openness but also to make sure that our Government 
officials responsible for responding can, to the maximum extent 
which conditions permit, respond in a timely and complete 
manner.
    I remain committed to working with those in the trenches, 
both literally and figuratively, who labor to respond to these 
requests. Whether it is enhancing the FOIA laws as reflected by 
the Open Government Act or providing resources targeted to 
specific backlogs or legislative changes in the way the 
administration allocates FOIA personnel, I stand ready to work 
with this committee as I do with Senator Leahy to advance these 
ideas.
    Finally, let me just say, lest there be any doubt about it 
and there is not, this is not a partisan issue. As Senator 
Leahy has observed many times, Democrats and Republicans alike 
like to trumpet their successes and hide their failures, and it 
is just human nature. We have an obligation to the American 
people, and we have an obligation to our form of Government to 
make sure that it works, to make sure that people have the 
information they need in order to judge what we are doing, in 
order to grant that informed consent which is the foundation of 
the legitimacy of our Government.
    So thank you very much for the opportunity to be here and 
testify, and we look forward to working shoulder to shoulder 
with you in the fights that loom ahead.
    [The prepared statement of Senator John C. Cornyn follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.007
    
    [GRAPHIC] [TIFF OMITTED] T4767.008
    
    [GRAPHIC] [TIFF OMITTED] T4767.009
    
    [GRAPHIC] [TIFF OMITTED] T4767.010
    
    [GRAPHIC] [TIFF OMITTED] T4767.011
    
    [GRAPHIC] [TIFF OMITTED] T4767.012
    
    [GRAPHIC] [TIFF OMITTED] T4767.013
    
    [GRAPHIC] [TIFF OMITTED] T4767.014
    
    [GRAPHIC] [TIFF OMITTED] T4767.015
    
    [GRAPHIC] [TIFF OMITTED] T4767.016
    
    [GRAPHIC] [TIFF OMITTED] T4767.017
    
    Mr. Platts. Thank you, Senator Cornyn, and I certainly 
share the belief of the importance of this. It is not a 
partisan issue but a good Government, bicameral issue, and we 
look forward to working with you. I think your point about the 
States that really have show and taken a lead and give us great 
examples to follow, that was again the intent of the Founding 
Fathers, that they are kind of the laboratories of democracy, 
and we can learn from them as opposed to thinking we always 
have the answers here in Washington.
    Congressman Sherman.

                 STATEMENT OF HON. BRAD SHERMAN

    Mr. Sherman. Well, thank you, Chairman Platts and Ranking 
Member Towns for inviting me to testify on this important 
Executive order and on the broader issues of open Government 
and ensuring the press and the public with access to Government 
information. Of course, I am delighted to be appearing here 
with Senator Cornyn and Senator Leahy, two Senators who have 
put so much effort into this and who share my belief that we 
must improve the accountability, accessibility, and openness of 
the Federal Government by improving FOIA.
    Executive Order 13392 was issued on December 14, 2005. Mr. 
Chairman, I believe you were there, and I believe that Senators 
were as well. It requires agencies to review their FOIA 
operations, develop an agency-specific plan, and to report to 
the Attorney General and the OMB Director on their review, 
development, and implementation of an agency plan by June 14, 
2006. So the 25 major agencies were required to do this. All 
but three have, and I know we all look forward to the State 
Department, Homeland Security Department, and USAID submitting 
their reports.
    While the Executive order was helpful, it failed to deal 
with a number of problems including the fact that under FOIA, 
the exemptions are too broad; the delays are too numerous; 
there is complete lack of meaningful penalties for either 
individuals or agencies that violate FOIA; as the Senators each 
pointed out, the shift in the burden of proof to the person 
requesting the information; and finally, the difficulty of 
recovering of recovering attorneys' fees when litigation is 
successful.
    On July 4th, earlier this month, a private group, the 
OpenTheGovernment.Org, issued a report on well the Executive 
order was working. The report found that the agency-specific 
plans for 17 agencies did not address the various points that 
were required by the Executive order. At least 43 percent of 
those points were not even covered. The Open The Government 
group rated 12 percent of the agency plans as poor and 36 
percent as merely adequate.
    Now Senators Cornyn and Leahy have offered two bills 
dealing with FOIA, the Open Government Act of 2005 and the 
Faster FOIA Act. Congressman Lamar Smith and I have sponsored 
identical bills in the House. As much fun as we are having here 
at this hearing, think of how much fun we would have if we were 
watching a markup of those two bills here at the subcommittee.
    The Open Government Act was described in part by the 
Senator from Texas. It would provide meaningful deadlines for 
agency action and impose real consequences on Federal agencies 
for missing statutory deadlines. It would enhance provisions in 
current law which authorize disciplinary action against 
Government officials who arbitrarily and capriciously deny 
disclosure. The bill would establish the Office of Government 
Information Services to review the FOIA process, implement a 
better tracking system of FOIA claims, and set a 20 day time 
limit for agencies to decide whether to comply with claims, and 
allow easier recovery of legal fees for claimants who 
successfully litigate to gain information.
    Specifically as to legal fees, the bill would make 
agencies, in more instances, pay those costs when efforts to 
pry open records through the courts are required in order to 
get information. The current law makes agencies pay attorneys' 
fees when the news media or the others requesting the 
information substantially prevailed. Under the Open Government 
Act, the requestor could recoup fees and legal costs if that 
requestor obtained a substantial part of the requested relief 
or caused the agency to change its position on the disclosure 
of records. Those who partially prevail in litigation should 
get their attorneys' fees. That is one way to inspire agencies 
to avoid this whole litigation process and instead provide the 
requestor with the information.
    Similarly, the Faster FOIA Act would establish an advisory 
commission of experts and Government officials to study what 
changes in Federal law and policy are needed to ensure most 
effective and timely compliance with FOIA. It would direct the 
commission to report to Congress and the President as to how to 
deal with these lengthy delays, and of course in this case, 
information delayed is information denied. We have to be as 
attuned to the timeliness of response as to its quality.
    So I urge the subcommittee and ultimately the full 
committee to mark up H.R. 867, the Open Government Act, and 
H.R. 1620, the Faster FOIA Act.
    Once again, thank you for inviting me to appear.
    [The prepared statement of Hon. Brad Sherman follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.018
    
    [GRAPHIC] [TIFF OMITTED] T4767.019
    
    [GRAPHIC] [TIFF OMITTED] T4767.020
    
    Mr. Platts. Thank you, Congressman Sherman.
    In looking at the original debate and taking 11 years to 
pass FOIA 40 years ago, the last major revisions, I believe, 
were 10 years ago. We are approaching that 11 year mark again. 
So maybe we will have success in legislative reforms going 
forward, and we certainly look forward to working with you.
    Congressman Smith was invited as well but had a conflict 
and was not able to be with us.
    I know you three need to run. We appreciate, again, your 
testimony. If I could ask one quick question, and I apologize 
in not getting you out of here.
    If there was one issue that the three of you saw as the 
most important when we look at the two different approaches in 
the legislation--the timely response and the lengthy delays and 
the most egregious example back to 1989, closing the loopholes 
and there being too many exceptions, a growing number of 
exceptions, or the mediation issue and having a better ability 
to dispute where there is a denial. Would you prioritize any 
one of those above the others or do you think they all go hand 
in hand?
    Senator Leahy. I think they are all important, but I think 
the recent trend of creating exceptions is a mistake, 
especially they are buried in legislation that we are to apt to 
see. That worries me. We should be doing just the opposite, and 
it should be an extraordinary thing if an exception is going to 
be made. That is something on which Republicans and Democrats 
should come together and say this is extraordinary.
    Senator Cornyn. I would agree with what Senator Leahy said, 
but to me, the most important thing we could do is to create 
real and meaningful consequences for failure to meet deadlines 
and to comply. Right now, there is no real incentive to do that 
other than the Government employee being a good, diligent 
employee. In fact, the incentives are all in favor of those who 
would receive a request and sit on it and basically wait out 
the requestor until they just went away. So I think real and 
meaningful consequences to a failure to respond on a timely 
basis is the most important thing to me.
    Mr. Platts. Congressman Sherman.
    Mr. Sherman. I think the Senators have hit it on the head. 
The exemptions are too numerous and too broad, and there are 
simply no penalties either on the agency or on the individual 
employee who simply refuses to comply with FOIA.
    Mr. Platts. Thank you, Congressman Sherman.
    I, again, appreciate your testimonies.
    I know the ranking member wanted to comment as well.
    Mr. Towns. No more than just to thank the Senators for 
coming and to thank our colleague on this side of the aisle as 
well for the work that they have done in this area, and we look 
forward to working with you because I must admit the areas that 
you are concerned with, I am also concerned with as well.
    Thank you very much, Mr. Chairman.
    Mr. Platts. Thank you, Mr. Towns. This hearing hopefully 
will lay the groundwork for that markup that we are all looking 
for.
    The committee will stand in recess for about 2 minutes 
while we seat the second panel.
    [Recess.]
    Mr. Platts. This hearing will reconvene.
    I would like to also note we have been joined by the 
gentleman from Tennessee, Mr. Duncan. Thank you for being with 
us. Mrs. Maloney from New York was here with us briefly.
    We are moved to our second panel now. The practice of the 
subcommittee and the full committee is to swear in our 
witnesses. Now that you are seated, if I could ask you to stand 
and raise your right hands.
    [Witnesses sworn.]
    Mr. Platts. Thank you. The clerk will note that both 
witnesses affirmed the oath. We appreciate your written 
testimonies, and we look forward to your oral testimony. We 
will keep the record open for 2 weeks after the hearing for any 
additional information you may provide.
    We will now proceed, Mr. Metcalfe, with you. Again, thank 
you for being with us.

STATEMENTS OF DAN METCALFE, DIRECTOR, OFFICE OF INFORMATION AND 
    PRIVACY, U.S. DEPARTMENT OF JUSTICE; AND LINDA KOONTZ, 
      DIRECTOR, INFORMATION MANAGEMENT ISSUES, GOVERNMENT 
                     ACCOUNTABILITY OFFICE

                   STATEMENT OF DAN METCALFE

    Mr. Metcalfe. Thank you, Mr. Chairman, and good afternoon, 
Mr. Chairman and members of the subcommittee.
    As the Director of the Department of Justice's Office of 
Information and Privacy, I am very pleased to be here this 
afternoon to address the subject of Freedom of Information Act 
and the status of the implementation of Executive Order 13392.
    The Department of Justice is the lead Federal agency for 
the implementation of the FOIA, and it works to encourage 
uniform and proper compliance with the act by all agencies 
through its Office of Information and Privacy which is known by 
its initials OIT. The 91 Federal agencies that are subject to 
the FOIA handle many millions of FOIA requests per year at a 
cost now approaching $400 million annually, and they work hard 
to do so with the limited resources that are available to them. 
This does not mean, of course, that there is not room for 
improvement.
    On December 14, 2005, the President issued Executive Order 
13392 entitled Improving Agency Disclosure of Information. In 
this Executive order, he directed that the executive branch's 
FOIA activities should be ``citizen-centered and results-
oriented,'' and he instructed each agency to take a number of 
specific concrete actions in order to implement this policy. 
These actions have been taken within individual Federal 
agencies, of course, but they have been coordinated by the 
Justice Department and the Office of Management and Budget on a 
Government-wide basis. I appreciate having this opportunity to 
describe to the subcommittee these particular areas of FOIA 
activity.
    Soon after the Executive order's issuance, the Justice 
Department and OMB disseminated it throughout the executive 
branch to the heads of all agencies as well as to all key FOIA 
personnel directly and provided preliminary guidance to 
agencies regarding it. OMB's guidance, issued on December 30, 
2005, by its Deputy Director, highlighted the Executive order's 
requirements, drawing immediate attention to its most immediate 
one, that is, its mandate for the appointment of a chief FOIA 
officer at each agency by January 13th. The Justice 
Department's counterpart guidance memorandum comprehensively 
discussed the Executive order's provisions as well, and shortly 
after January 13th, the Justice Department posted a 
comprehensive list of all agency chief FOIA officers.
    The President next required that agencies establish FOIA 
Requestor Service Centers and FOIA Public Liaisons in order to 
provide information about the status of their FOIA requests 
which they immediately began to do.
    He further directed each agency, by June 14th, to ``conduct 
a review of the agency's FOIA operations'' and develop ``an 
agency-specific plan to ensure that the agency's administration 
of the FOIA is in accordance with applicable law'' and the 
Executive order's policies.
    He required that each agency's plans ``include specific 
activities the agency will implement to eliminate or reduce the 
agency's FOIA backlog,'' as well as ``concrete milestones with 
specific timetables and outcomes to be achieved'' by June 14th.
    To best facilitate these critical agency reviews and the 
consequent development of individual agency improvement plans, 
the Executive order convened a major conference for all of 
these newly designated chief FOIA officers and accompanying key 
FOIA personnel on March 8th. This conference was keynoted by 
the Associate Attorney General and OMB's Deputy Director for 
Management. Their remarks were followed by detailed discussions 
of the Executive order's provisions and implementation in order 
to ensure that chief FOIA officers would understand fully and 
be able to discharge comprehensively their responsibilities. A 
wide range of potential improvement areas was presented for all 
agencies' consideration in addition to those identified by the 
agencies themselves as particularly well suited to their own 
individual circumstances.
    The following month on April 13th, OMB's Director issued a 
memorandum that emphasized the importance of ``ensuring the 
success of this important Presidential initiative.''
    Then as agencies advanced further in their ongoing reviews 
and planning, the Department of Justice conducted three 
followup programs for all agencies, one each month until the 
deadline. The Department made available to all agencies 
specific formatting guidance ultimately reflected in its own 
FOIA improvement plan as a model.
    The Department also provided extensive written guidance to 
all agencies. This guidance which was issued on April 26th, in 
coordination with OMB, was distributed to all agencies at the 
first of these followup sessions at OIP and also was made 
available through the Department's FOIA Web site. It contained 
discussions of more than two dozen potential improvement areas 
identified for possible inclusion in agency plans, and it 
established a template for the uniform development and 
presentation of all plans. Further, it included supplemental 
guidelines on the use of agency annual FOIA reports for 
reporting the results of the Executive order's implementation, 
and it additionally addressed a breadth of questions and 
guidance points in aid of all such implementation efforts.
    Most recently, on July 11th, the Department conducted a 
special training conference for the FOIA Public Liaisons of all 
Federal agencies whose numbers total nearly 200 in order to 
review and emphasize their new responsibilities. At this 
conference, the Department discussed both the explicit roles of 
FOIA Public Liaisons as well as the less obvious but no less 
important roles that they can perform in support of their 
agency's chief FOIA officer regarding improvement plan 
implementation and related activities. Special emphasis was 
placed upon the importance of current implementation efforts 
and their timely reporting by all agencies in accordance with 
the Executive order's firm February 1, 2007, timetable.
    Finally, the Department worked quite closely with many 
individual agencies as the June 14th deadline arrived in order 
to facilitate their timely and comprehensive completion of the 
planning requirement. To further this and to aid the review of 
all agencies' improvement plans, the Department has compiled 
these plans and makes them available for convenient public 
access at a single location on its FOIA Web site. Thus, 
interested persons can examine all agency FOIA improvement 
plans side by side just as they are able to do with the annual 
FOIA reports that agencies file.
    In conclusion, Mr. Chairman, you can be assured that the 
Department of Justice looks forward to working together with 
the subcommittee on all matters pertaining to the Government-
wide administration of the FOIA, including further activities 
in implementation of the Executive order. As this subcommittee 
considers this relatively new subject area of its oversight 
jurisdiction, it can be confident of the Department's strong 
and cooperative assistance on all such matters of mutual 
interest.
    I would be very pleased to address any question that you or 
any other member of the subcommittee might have on this 
important topic.
    [The prepared statement of Mr. Metcalfe follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.021
    
    [GRAPHIC] [TIFF OMITTED] T4767.022
    
    [GRAPHIC] [TIFF OMITTED] T4767.023
    
    [GRAPHIC] [TIFF OMITTED] T4767.024
    
    [GRAPHIC] [TIFF OMITTED] T4767.025
    
    [GRAPHIC] [TIFF OMITTED] T4767.026
    
    [GRAPHIC] [TIFF OMITTED] T4767.027
    
    [GRAPHIC] [TIFF OMITTED] T4767.028
    
    [GRAPHIC] [TIFF OMITTED] T4767.029
    
    Mr. Platts. Thank you, Mr. Metcalfe.
    Ms. Koontz.

                   STATEMENT OF LINDA KOONTZ

    Ms. Koontz. Mr. Chairman, members of the subcommittee, I 
appreciate the opportunity to participate in today's hearing on 
the implementation of the Freedom of Information Act.
    This important statute establishes that Federal agencies 
must provide the public with access to Government information, 
thus enabling them to learn about Government operations and 
decisions. As you know, under the act, agencies create annual 
reports that provide specific information their FOIA 
processing. In addition, a recent Executive order directs 
agencies to develop plans to improve FOIA operations, including 
goals to reduce backlogs in requests. These goals are to be 
measurable, outcome-oriented, and tied to timetables with 
specific milestones, so that agency heads can evaluate the 
success of the plans.
    My remarks today will focus on 25 major Federal agencies as 
we have done in previous studies. As requested, I will first 
discuss the fiscal year 2005 annual reports, comparing those 
statistics to others reported since 2002. Second, I will 
discuss whether the improvement plans for these 25 agencies 
provided the kinds of goals and timetables required by the 
Executive order. My statement today is based on ongoing work we 
are performing for this subcommittee.
    Citizens continue to request and receive increasing amounts 
of information from the Federal Government through FOIA. 
However, the rate of increase has flattened in recent years. In 
saying this, I am excluding statistics from the Social Security 
Administration which reported over 17 million requests for 
fiscal year 2005, a jump of about 16 million from the year 
before. Including those numbers would obscure year to year 
Government comparisons.
    Based on the data from the other 24 agencies, the number of 
requests received and process in fiscal year 2005 has grown 
substantially since 2002 but rose only very slightly from 2004. 
The 24 agencies also report that in fiscal year 2005, they 
provided records in full about 87 percent of the time. However, 
for all 25 agencies, the number of pending requests at the end 
of the year has been steadily increasing, and the rate of 
increasing, increase has been greater every year since 2002. At 
the same time, median times to process requests varied greatly 
from agency to agency. The median times reported range from 
less than 10 days at some agency components to more than 100 
days at others, sometimes much more than 100.
    Regarding agency improvement plans, most that we have 
assessed to date include discussions of reducing backlog, but 
not all consistently followed the Executive order guidance. 
Three agencies had not published their plans by June 30th, and 
thus we could not analyze them for this hearing, and one agency 
reported no backlog.
    Based on our ongoing analysis, 12 of the remaining 21 
agencies followed the order's instruction to establish 
measurable, outcome-oriented goals for reducing or eliminating 
their backlogs as well as timetables with milestones for 
achieving these goals. Nine agencies did not do this, although 
they did provide goals and timetables for other kinds of 
objectives such as performing staffing analyses and reviewing 
progress. These nine agencies accounted for a substantial 
portion, about 29 percent, of the requests reported to be 
pending at the end of fiscal year 2005.
    In addition, agencies generally did not specify the dates 
or numbers they were using as the baselines for their existing 
backlogs. Explicit and well defined baselines will be 
important, so that agencies can measure and demonstrate 
improvement.
    In conclusion, the President's Executive order creates a 
renewed results-oriented emphasis on improving request 
processing and reducing the backlogs of pending requests. 
However, without baseline measurement and tangible steps for 
addressing the accumulation of pending cases, the heads of 
these agencies could find it difficult to measure and evaluate 
the results of their planned activities. Accordingly, it will 
be important for Justice and the agencies to refine the plans, 
so that agencies can fully realize the goal of reducing 
backlogs and improving responsiveness to agency needs. When we 
complete our ongoing work, we expect to provide recommendations 
to help move this process forward.
    Mr. Chairman, that completes my prepared statement. I will 
be happy to answer questions at the appropriate time.
    [The prepared statement of Ms. Koontz follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.030
    
    [GRAPHIC] [TIFF OMITTED] T4767.031
    
    [GRAPHIC] [TIFF OMITTED] T4767.032
    
    [GRAPHIC] [TIFF OMITTED] T4767.033
    
    [GRAPHIC] [TIFF OMITTED] T4767.034
    
    [GRAPHIC] [TIFF OMITTED] T4767.035
    
    [GRAPHIC] [TIFF OMITTED] T4767.036
    
    [GRAPHIC] [TIFF OMITTED] T4767.037
    
    [GRAPHIC] [TIFF OMITTED] T4767.038
    
    [GRAPHIC] [TIFF OMITTED] T4767.039
    
    [GRAPHIC] [TIFF OMITTED] T4767.040
    
    [GRAPHIC] [TIFF OMITTED] T4767.041
    
    [GRAPHIC] [TIFF OMITTED] T4767.042
    
    [GRAPHIC] [TIFF OMITTED] T4767.043
    
    [GRAPHIC] [TIFF OMITTED] T4767.044
    
    [GRAPHIC] [TIFF OMITTED] T4767.045
    
    [GRAPHIC] [TIFF OMITTED] T4767.046
    
    [GRAPHIC] [TIFF OMITTED] T4767.047
    
    [GRAPHIC] [TIFF OMITTED] T4767.048
    
    [GRAPHIC] [TIFF OMITTED] T4767.049
    
    [GRAPHIC] [TIFF OMITTED] T4767.050
    
    [GRAPHIC] [TIFF OMITTED] T4767.051
    
    [GRAPHIC] [TIFF OMITTED] T4767.052
    
    [GRAPHIC] [TIFF OMITTED] T4767.053
    
    [GRAPHIC] [TIFF OMITTED] T4767.054
    
    [GRAPHIC] [TIFF OMITTED] T4767.055
    
    [GRAPHIC] [TIFF OMITTED] T4767.056
    
    [GRAPHIC] [TIFF OMITTED] T4767.057
    
    [GRAPHIC] [TIFF OMITTED] T4767.058
    
    [GRAPHIC] [TIFF OMITTED] T4767.059
    
    [GRAPHIC] [TIFF OMITTED] T4767.060
    
    [GRAPHIC] [TIFF OMITTED] T4767.061
    
    [GRAPHIC] [TIFF OMITTED] T4767.062
    
    [GRAPHIC] [TIFF OMITTED] T4767.063
    
    [GRAPHIC] [TIFF OMITTED] T4767.064
    
    [GRAPHIC] [TIFF OMITTED] T4767.065
    
    [GRAPHIC] [TIFF OMITTED] T4767.066
    
    [GRAPHIC] [TIFF OMITTED] T4767.067
    
    [GRAPHIC] [TIFF OMITTED] T4767.068
    
    [GRAPHIC] [TIFF OMITTED] T4767.069
    
    [GRAPHIC] [TIFF OMITTED] T4767.070
    
    [GRAPHIC] [TIFF OMITTED] T4767.071
    
    [GRAPHIC] [TIFF OMITTED] T4767.072
    
    [GRAPHIC] [TIFF OMITTED] T4767.073
    
    [GRAPHIC] [TIFF OMITTED] T4767.074
    
    [GRAPHIC] [TIFF OMITTED] T4767.075
    
    [GRAPHIC] [TIFF OMITTED] T4767.076
    
    [GRAPHIC] [TIFF OMITTED] T4767.077
    
    [GRAPHIC] [TIFF OMITTED] T4767.078
    
    [GRAPHIC] [TIFF OMITTED] T4767.079
    
    [GRAPHIC] [TIFF OMITTED] T4767.080
    
    [GRAPHIC] [TIFF OMITTED] T4767.081
    
    [GRAPHIC] [TIFF OMITTED] T4767.082
    
    [GRAPHIC] [TIFF OMITTED] T4767.083
    
    [GRAPHIC] [TIFF OMITTED] T4767.084
    
    [GRAPHIC] [TIFF OMITTED] T4767.085
    
    [GRAPHIC] [TIFF OMITTED] T4767.086
    
    [GRAPHIC] [TIFF OMITTED] T4767.087
    
    [GRAPHIC] [TIFF OMITTED] T4767.088
    
    [GRAPHIC] [TIFF OMITTED] T4767.089
    
    [GRAPHIC] [TIFF OMITTED] T4767.090
    
    [GRAPHIC] [TIFF OMITTED] T4767.091
    
    [GRAPHIC] [TIFF OMITTED] T4767.092
    
    [GRAPHIC] [TIFF OMITTED] T4767.093
    
    [GRAPHIC] [TIFF OMITTED] T4767.094
    
    Mr. Platts. Thank you, Ms. Koontz.
    We again appreciate both of your testimonies and, in a 
broader sense, both of you for your service in your respective 
positions to our Nation and our citizens, and your important 
work.
    I would like to begin the questions with maybe a broad 
perspective or question on the Executive order. Aside from the 
actual plans being submitted and having a strategy going 
forward, what would you say is the most significant improvement 
that has come from the Executive order being issued within the 
departments and agencies, from your read of how FOIA is looked 
at or being acted upon?
    Mr. Metcalfe. I think I can speak to that, Mr. Chairman, by 
making reference to a word that was used by Senator Cornyn in 
his statement just a few minutes ago. He said that the very 
existence or issuance of the Executive order has elevated the 
whole subject of Freedom of Information and the Freedom of 
Information Act's administration in particular. I think part of 
that elevation idea is that it has drawn more and more 
attention to it. It has drawn a higher level of attention to it 
within agencies just in the appointment of the Chief FOIA 
officers, for example, at very high levels, and a high level of 
accountability.
    I know that when I talk to Federal agencies, and I work 
very hard to encourage them to do the right thing and to 
administer the act in a uniform and consistent and proper 
fashion, I am able to wield the Executive order, if you will, 
in that sort of conversation. What is more important than that 
perhaps is that in turn I encourage them to wield it internally 
within the agencies. From time to time, you might imagine that 
FOIA officers get some resistance or less than maximum 
cooperation from others involved in the process, who are 
necessary participants, program personnel and the like, and the 
Executive order and its importance can be wielded in a very 
positive way in that sense.
    Mr. Platts. Thank you.
    Ms. Koontz.
    Ms. Koontz. I would agree that the Executive order has 
provided more emphasis on the importance of FOIA and on FOIA 
processing. Two things in particular that occur to me, and one 
is that it improves accountability through requiring agencies 
to appoint chief FOIA officers which I think is important, and 
in addition, it provides a results-oriented framework for 
agencies to move forward. And I think if agencies are serious 
in terms of their improvement plans, I think we will see, we 
may see significant improvements in FOIA operations.
    Mr. Metcalfe. I have to concur, of course, with what Ms. 
Koontz says as well. I think she is absolutely correct in that 
respect as well.
    Mr. Platts. Thank you.
    I think the fact that the President issued the Executive 
order, in raising the kind of focus and attention and in that 
having certain requirements such as submitting the plans by 
June 14th. At that time, three of the departments and agencies, 
the State Department and USAID and Department of Homeland 
Security, had not submitted theirs. They have since. But again, 
even though the President said I want this done, three did not 
do it when it was supposed to be done, and it really goes to 
the final comments of our first panel about consequences.
    Are you aware of any consequences that have been pursued or 
announced for failure to meet that deadline or, as we go 
forward from here to the November 15th timeframe, any 
consequences that have been delineated out there?
    Mr. Metcalfe. Well, as to the first part of your question, 
Chairman Platts, I would have to say no, I am not aware of 
anything that you have delineated per se. I do know that as the 
process unfolded, that we worked very hard with agencies to 
remind them of the importance of meeting that deadline.
    Ms. Koontz correctly points out that three of the agencies 
did not meet it. The State Department, although not having its 
report and plan in by the June 30th cutoff that they needed to 
perform their good work at GAO, it did have its plan in by July 
7th, and AID, I believe, was in roughly the same timeframe. DHS 
was in a slightly different category. I believe it was more 
recent, but I can tell you firsthand, based upon talking to 
DHS, that it was not for lack of high level attention to that 
and trying to move the process forward as quickly as possible.
    As for consequences in a broader sense, I can point out 
that the Executive order has built right into it a couple of 
mechanisms that are of note. The first is that the Attorney 
General is charged by the President under the Executive order 
to file a report, submit a report rather to the President by 
October 14th with an eye toward the agencies' plans; and the 
second is that at the first stage of agency reporting of their 
results, agencies are obligated if they do not meet any 
particular milestone in their plan, to report that as a 
deficiency or at least as a failure to meet a milestone to the 
President's Management Council. That is built right into the 
Executive order itself.
    As to consequences in a broader sense, and I know the 
question of penalties has been raised in a broader sense, even 
discussed at the hearing last May, I do have additional 
information regarding that, and I am not sure whether you want 
to get into that quite yet at this time.
    Mr. Platts. We will come back to on that.
    Ms. Koontz, did you have anything you wanted to add?
    We are going to come back for additional rounds, but I 
would like to yield to the ranking member, Mr. Towns, for the 
purpose of questions.
    Mr. Towns. Thank you very much, Mr. Chairman.
    I sort of want to pick up on something you started. Mr. 
Metcalfe, can you offer us specific examples of what DOJ has 
done to enforce agency compliance with FOIA?
    Mr. Metcalfe. How much time do you have, Congressman, 
because we have been doing a lot of things for a great many 
years? And I am not trying to be flip in my response. There are 
many, many things that we have done.
    Mr. Towns. How about a few? I have a little time.
    Mr. Metcalfe. All right. The first is something that we 
used to call our Short Guide to the FOIA, and we lost our right 
to call it that many years ago. We prepare a very lengthy 
guidance document for Federal agencies. It is one of GSA's, 
pardon me, GPO's big sellers, and we send it around Government-
wide. We do an enormous amount of training, both individualized 
at agencies and on a Government-wide basis as well. We have a 
FOIA counselor service that sometimes is known affectionately 
as the hotline. We receive more than 3,000 telephone inquiries 
per year.
    We handle litigation, and that can lead to a guidance 
function as well, but I think perhaps the final thing I should 
mention with respect to Government-wide guidance is that we do 
develop policy and disseminate that. All of that policy is 
aimed toward making sure that agencies understand the best and 
most proper way to apply the law and to do so on a uniform 
basis.
    Perhaps I can sum up my answer by saying we take great 
pains every year in an annual report that we file with 
Congress. It is filed on a calendar year basis under the law as 
it stands, not a fiscal year basis, and we file that April 1st 
of every year. At the final portion of that report, we have 
many pages that are called, the report is titled Department of 
Justice's Efforts to Encourage Uniform Compliance with the act. 
You can just read through that and see the many, many different 
things that we do.
    Mr. Towns. The Department of Homeland Security has not 
submitted a FOIA improvement plan as required by the Executive 
order.
    Mr. Metcalfe. I apologize for interrupting, Congressman 
Towns, but my understanding, and this is something I learned 
just today, is that it has finally been submitted.
    Mr. Towns. It has happened?
    Mr. Metcalfe. Yes, sir, and I learned that from Ms. Koontz 
who sometimes educates me just as I do her. We go back and 
forth that way, very symbiotically.
    Mr. Towns. Well, I thank both of you for educating me 
because as of this morning, that had not been. When did that 
happen?
    Ms. Koontz. We received the DHS plans, I believe, on 
Monday, but I don't know that it has been made publicly 
available on the Web site, but they anticipated the hearing and 
did give us a copy of the report.
    Mr. Metcalfe. I think Ms. Koontz is correct, that it is 
regrettably not yet posted. There is sometimes a lag between 
issuing and posting, unfortunately.
    Mr. Towns. Right. Well, let me just move to the question. 
If an agency does not comply, what do you do?
    Mr. Metcalfe. Well, I assume by that question, Congressman 
Towns, you mean the June 14th deadline that we are speaking of.
    Mr. Towns. That is correct, yes.
    Mr. Metcalfe. Well, we did a number of things. We did have 
some agencies, as you know, that had not met that deadline, and 
in every one of those instances, someone in my office and then 
followed up by me personally contacted the agency to discuss 
that. In some instances, we had extensive discussions about 
particular difficulties that had been encountered by the 
agencies. I should emphasize here that it is a relatively small 
number of agencies involved here, just a handful or two or so. 
That led to most of those agencies complying very quickly. 
However, as you have identified, there were three agencies that 
took a little bit longer than that.
    Mr. Towns. I guess to you Ms. Koontz, if we were to remove 
sensitive or intelligence-related information, how well would 
intelligence community agencies like the CIA and State have 
done in fulfilling FOIA requests?
    Ms. Koontz. That is a question I cannot answer based on the 
data that we have in the annual reports. I have no way of 
removing that kind of specific information, those specific 
requests.
    Mr. Towns. Let me try it this way then. Is there a 
correlation between the increase in the number of FOIA request 
backlogs and the restrictive policies put in place by certain 
agencies?
    Ms. Koontz. We are still in the early stages of our work. 
We haven't run those kinds of analyses. I don't know if it is 
even possible to do those kind of correlations based on the 
data that we have, but we will look very closely at the data 
that was reported, and we will be following up with individual 
agencies to see what it is we can learn from that.
    Mr. Towns. I see my time has expired. Mr. Chairman, we are 
getting another round?
    Mr. Platts. Yes, Mr. Towns, we will come back.
    Mr. Towns. Thank you.
    Mr. Platts. Mr. Gutknecht.
    Mr. Gutknecht. Thank you, Mr. Chairman.
    In response to what Mr. Towns just said or at least it 
sparked my memory of something that happened to me recently and 
for the benefit of the committee and those that may be here. I 
was briefed recently by some folks in the Intelligence 
Committee about a couple of issues, and one of the pieces of 
information seemed incredibly innocuous, and then they quickly 
said, but that is top secret.
    I said, why?
    They said, well, the information itself is not but how we 
got it is, and so we have to sometimes be sensitive to the 
sources of the information that we have.
    So I do want to give some benefit of the doubt to Homeland 
Security.
    I want to come back to something I raised earlier that I 
have been involved with and more importantly, my staff has been 
involved with for over, I think, it is almost 2 years. It is 
over a year and a half. That is there is an individual who had 
embezzled a bunch of money from his clients, and he was 
ultimately convicted. The local newspaper, the Faribault County 
Register, wanted to run a picture of his mugshot, and the local 
U.S. Marshal's Office in St. Paul said that they don't give out 
those, even after they are convicted.
    Mr. Metcalfe, is there a clearly defined policy because it 
is our understanding and particularly through the Newspaper 
Association, that varies from region to region? Is there a set 
policy on that?
    Mr. Metcalfe. Congressman, I remember your mentioning that 
in your opening statement, and I have been thinking about that 
a bit since then, so that I can give you a clear and 
comprehensive answer. In general, and I am speaking now about 
the policy of the U.S. Marshal Service, a component of the 
Department of Justice. In general, they have a policy of 
applying a privacy exemption, specifically Exemption 7(c) of 
the FOIA, which is the Law Enforcement Privacy Exemption, to 
such photographs that are commonly referred to as mugshots.
    I think I can discern, however, a basis or perhaps the 
basis for your questioning in that regard, in that there is an 
appellate court decision that was issued by the Sixth Circuit 
Court of Appeals. The plaintiff in that case was the Detroit 
Free Press. It came down many years ago, and it ruled a 
different way. The Marshal Service, I believe, does follow an 
exception to its policy for any FOIA requestor within the 
geographic boundaries of the Sixth Circuit, Tennessee, 
Kentucky, Michigan, and Ohio, based upon that decision. That is 
my best current understanding, sir.
    Mr. Gutknecht. I think that is a very good understanding. 
You have done a better job of explaining it than anybody.
    Mr. Metcalfe. Well, I had more time to think about it, 
perhaps, sir.
    Mr. Gutknecht. But I have waded into this, and it leads me 
to my next question. Finally, on March 21st of this year, I 
wrote a letter to the Assistant Attorney General who is 
responsible for this and on May 1st, I got sort of an 
acknowledgment that they received my letter and that they would 
get back to us. Today is what, July 27th.
    Mr. Metcalfe. I believe it is the 26th, sir.
    Mr. Gutknecht. The 26th, as of today, we have not received 
any further correspondence on this matter. The reason I raise 
that is I don't think Members of Congress ought to get special 
treatment, but if it takes a Member of Congress that long to 
get a response, I think it is legitimate for us to ask is that 
pretty much the standard because we heard from Ms. Koontz that 
some are as quickly as 10 days. That really hasn't been the 
experience we have heard about.
    Obviously, if people get a quick response and get what they 
want, they probably don't call us, but if it takes us that long 
to get an answer, is it fair to assume that maybe other people 
take a long time as well?
    Mr. Metcalfe. Congressman, if I could speak to that just to 
interject, I think I can say two things in particular directly 
responsive to your question. The first is that, although I do 
not know of the current status of any such particular matter, I 
would be pleased to take that back with me today and to express 
your concern regarding what we would call a congressional 
inquiry type matter.
    The second thing goes to the phrasing I just used which is 
I think it is important, please correct me if I am mistaken, to 
keep in mind that your correspondence was a congressional 
inquiry; it was not a FOIA request. By that, I mean to say it 
is a delineation that is significant. Sometimes there are 
considerations that come into play with responding very, very 
carefully to a congressional correspondence item that have 
nothing to do with FOIA requests per se. So the two really are 
distinct.
    Mr. Gutknecht. Ms. Koontz, though, more specifically, would 
you include in your 10 days, does a letter of acknowledgment of 
the receipt of a request constitute a response?
    Ms. Koontz. I am sorry. Does it a constitute a response to 
the request?
    Mr. Gutknecht. As you keep score, when you said some were 
responded to in as quickly as 10 days, is that 10 day response 
merely an acknowledgment or is a real response to what the 
request was?
    Ms. Koontz. My understanding is it is a real response to 
the request. I think the thing that is important to keep in 
mind here is that FOIA processing varies widely among different 
agencies and probably within different departments and 
different components within agencies. Some FOIA requests are 
very straight forward. It could even be a request for a one's 
own medical records, say, at the VA, which can be turned over 
instantly or within a very short period of time.
    Others at other departments, you can imagine at the CIA, we 
are talking about having to maybe search voluminous amounts of 
information, perhaps redact information that should be kept 
confidential. The level of complexity, the numbers, the types, 
the missions of agencies cause this to be very different at 
different places and at different points in time.
    Mr. Gutknecht. We understand that. Mr. Chairman, I am not a 
big believe in PowerPoint demonstrations always, but I think 
this is one where it might be helpful if you could put together 
something that would put into context because I do think there 
is a big difference between simply requesting whether or not 
grand-dad ever got his Purple Heart or other kinds of 
information that may contain therein some sensitive things that 
do need to be redacted. I understand that.
    Mr. Chairman, I hope we will have another round because I 
want to get to a couple of other questions.
    Mr. Metcalfe. Mr. Chairman, if I could ask just for a brief 
interjection.
    Mr. Platts. Yes.
    Mr. Metcalfe. I am able to give a very specific response to 
Congressman Gutknecht on that exact question and very quickly 
say, no, an acknowledgment letter such as you describe is not 
responding to a FOIA request as a matter of both law and 
policy. agencies issue acknowledgment letters all the time, but 
that has nothing to do with complying with the statutory 
deadline. A full decision and disclosure thereafter are what is 
necessary to comply.
    Mr. Platts. Thank you for that important clarification, Mr. 
Metcalfe. We will come back around for a second round.
    I want to followup on that exact point with Mr. Gutknecht 
on the difference in looking, Ms. Koontz, at your data and as 
always at GAO, you do a great job of compiling and presenting. 
If I am reading it correctly in the materials included in your 
statement, where it has for each of the departments and 
agencies, the numbers of requests processed in 2004 and 2005 
and the median response time, I tried to pick two that don't 
get into national security and law enforcement that are more 
sensitive. The Small Business Administration which has no 
backlog is what they are saying, and for 2005, they had I think 
3,737 requests processed with a median days to process of 
seven. Comparing that to the Department of Education which had 
1,874 and a median days of 35.
    Are you able to share any insights on that comparison of 
why we would see such a disparity, one getting twice as many 
requests and yet its median response time is one-fifth the 
amount of time of the other agency and neither one of them 
being in National Security, things that we would think of as 
more sensitive for our Nation?
    Ms. Koontz. I think you zeroed in on some questions that we 
certainly have about the data. The one, the information that we 
presented in this report is based on what the agencies report 
in their annual reports which is aggregate data. What we don't 
get from the annual reports is a sense of what the character of 
those requests are or how difficult they are or what they are 
for. I think until you could go in and actually look at 
individual requests and understand what the differences are, I 
don't think that you could answer that question, and that would 
be, I mean, tremendously difficult to do too because it is 
talking about going back to the individual requests and 
evaluating them.
    Mr. Platts. I agree. It will be challenging, but it may be 
something, as we try to get to the crux of the problem here, 
that would give us a more factual basis of what is working or 
what is not working because it is quite a different in median 
time and again for two agencies you would expect to have more 
straight forwarding handling of these types of requests.
    Ms. Koontz. I think what might be, I mean, frankly, the 
only way to really I think understand FOIA and some of the 
barriers in terms of processing is to get down to that level as 
well. This might be the kind of thing that perhaps as we do our 
ongoing work, we can identify some examples like that and talk 
about the differences between, say, an SBA and some other 
agency or the difference between VA and SSA and why they are 
able to process things so quickly compared to other agencies 
where it is much more difficult. So that might illuminate some 
of these differences.
    Mr. Platts. Mr. Metcalfe, a followup on that same issue is 
with your efforts in compliance, I assume as opposed to a stick 
approach of, hey, you are not doing this; you are not following 
the law. As far as knowledge sharing, is there any effort 
within the Department of Justice to say to Education, we have 
looked at your annual numbers, and based on what you are 
telling us, you are taking five times as much time as SBA is 
with half of the workload; perhaps we want to get the two of 
your agencies together to see what they are doing differently?
    Is there any type of dialog of that nature that departments 
interact and say, what are you doing that is working compared 
to apparently what is not working ours?
    Mr. Metcalfe. Yes, Congressman, I think my answer is best 
twofold. One is with respect to the ongoing activities we have 
in general and have had for many years of getting agencies 
together in a program such as our FOIA Administrative Forum 
where we get journeymen FOIA officers from all the different 
agencies together to share best practices and ideas like that 
and the like. We do do that sort of thing and have done it for 
a while.
    Now beyond that, under the current Executive order, we have 
a basis for focusing and discussing even more particularly as 
we see what agencies do in the implementation of their plans in 
this current phase that will end in mid-January or February 1st 
of next year.
    Mr. Platts. Is there, when you do those programs, mandatory 
participation of departments and agencies?
    Mr. Metcalfe. I think the word mandatory, Chairman Platts, 
is a little bit strong, but I can tell you this. We have no 
trouble filling the seats. As a matter of fact, it is quite to 
the contrary. We have run a backlog, if you will, of our own of 
people who are waiting lists for our training, and we train 
literally thousands and thousands of agency personnel as there 
is turnover in that particular area and always new people are 
coming in. So, although it is not mandatory in the sense in 
which I think you mean it in the question, it has never struck 
us as a difficulty in getting people there.
    Mr. Platts. Maybe pursuant to the Executive order, having 
the chief FOIA officers that have now been designated is a 
sense of there being a formal and more mandatory participation. 
Something I am assuming you don't do that may provide that 
incentive in a maybe less public way but inside the agencies, 
more public, is when they come into that meeting, if these 
charts that GAO put together with number of requests and median 
times to process are listed across the board where all of them 
are together and they are all going to say, hey, we look pretty 
good up there or they are going to say, we don't look good up 
there. The next time I walk into that meeting room, I am going 
to do my best to improve my process because I am going to be 
with my colleagues.
    Mr. Metcalfe. I take your point, Chairman Platts, and I 
appreciate your reminding me that under the current Executive 
order, we have had programs that are perhaps not most precisely 
described as mandatory but pretty darn close. That program we 
had for chief FOIA officers on March 8th was just such a 
program, and then the one that we had for all the FOIA Public 
Liaisons on July 11th was very much along those lines as well. 
Those are people who are at a lower level within the agencies. 
As we all know as a practical matter, the ability to mandate, 
if you will, attendance increases, the lower the level of the 
employee, but we were very pleased with the level of attendance 
we had on March 8th, getting all of those chief FOIA officers 
together.
    Mr. Platts. Is there anything in the works now for a 
followup on that as they have now submitted their plans and 
move forward?
    Mr. Metcalfe. Well, we are going to be following the 
Executive order itself. To use a phrase that was used earlier, 
that is basically a blueprint of what is done, and the next 
step under the Executive order is for the Attorney General to 
file that report to the President. Frankly, that is our focus 
at this point. That is not so very far away. But I think one 
could reasonably imagine that we would be doing very logical 
things in the future entirely consistent with, I think, the 
very good things that we have done thus far this year.
    Mr. Platts. I appreciate your Department's efforts, and I 
do think the more transparency, the more incentive, because 
with that transparency and sunshine shooting in, the more 
people feel obliged to try to bring their scores or in this 
case, their compliance times, up.
    Mr. Metcalfe. Absolutely, and we believe in transparency 
about transparency as well.
    Mr. Platts. Exactly.
    I yield to the ranking member, Mr. Towns.
    Mr. Towns. Thank you, Mr. Chairman.
    Let me just go back to you, Mr. Metcalfe. What is the 
Justice Department doing in its oversight of agencies that have 
a higher percentage of FOIA requests that end up in litigation? 
Does the Justice Department support agencies waiting until a 
lawsuit takes place? What is your position on all this?
    Mr. Metcalfe. OK, I think for purposes of clarity, 
Congressman Towns, I probably should divide that question into 
its two basic parts. As to the first part, we do handle 
litigation. We are very much aware of what happens in 
litigation and agencies that are sued and the results of those, 
and we certainly factor that into our training programs.
    For example, just one concrete example, I gave a 
presentation just last week for several hours, together with 
the Deputy Director of OIP, and two of the cases that I 
emphasized right there were cases in which two agencies--they 
will remain nameless today, but their initials are--no, I am 
kidding. I won't say that.
    Two agencies that were sued in that case----
    Mr. Towns. I missed the initials.
    Mr. Metcalfe. You know, this mic, it is just going on and 
off. It is in and out. That is the problem.
    But we made very specific use of those two cases involving 
those two agencies, Congressman Towns, to help educate other 
agencies as well.
    As to the second part of your question, I think it was a 
little bit different, and please help me to remember it 
correctly.
    Mr. Towns. Actually, do you wait until a lawsuit is filed 
before releasing information?
    Mr. Metcalfe. Yes, pardon me. Strike that last word, 
please. Yes, I now remember your question. No, agencies in 
general or generally speaking do not do that and ought not to 
do that as a practice whatsoever. I think that what is 
underlying your question has to do with the question of 
attorneys' fees and specifically how things work under the 
Supreme Court's Buckhannon decision, and that is a decision 
that does have an effect on the award of attorneys' fees, but 
we make it very clear to agencies that they ought not to do 
that. As a matter of fact, one of the cases that I alluded to 
earlier had that aspect to it, where the judge criticized an 
agency for doing something that could be perceived as what you 
mention in your question, Congressman Towns, and we held that 
agency up a negative model. We said: Don't do that; that is not 
the way to do things.
    Mr. Towns. I want to just sort of followup on something I 
think Mr. Gutknecht asked earlier. I just want to get 
clarification of it. Now if it is a congressional request, that 
is handled differently? Did you say that? I want to make 
certain I understand that.
    Mr. Metcalfe. Yes, I think it is accurate across the board 
for virtually all, if not all, Federal agencies to say they 
have certain channels for handling certain things. One channel 
or track is the FOIA, and the FOIA track handled by FOIA 
personnel, and almost all agencies have congressional Affairs 
Offices that work very hard on handling congressional 
inquiries. They are tracked or channeled in different ways. 
Sometimes a congressional inquiry can verge on the subject 
matter of a FOIA request or even be about the handling of a 
FOIA request, but their handling on different tracks is 
distinct.
    Mr. Towns. What is DOJ doing to ensure that agencies with 
significant classified information, such as DHS or DOD, are 
complying with the requirements of FOIA and EFOIA for commonly 
requested information?
    Mr. Metcalfe. OK, there are multiple elements built into 
your question, Congressman Towns. Let me say first, and this is 
going to sound like a hypertechnical point, and I apologize if 
it strikes you that way. We do a lot to encourage agency 
compliance, but we don't have the absolute authority to ensure 
anything. So I am just picking up on that word first.
    But with respect to classified information and whether 
information is withheld or not, we work with agencies to make 
sure that they understand how that part of the FOIA works, 
Exemption 1, and a big part of our guide to the FOIA deals with 
all the case law discussing the standards and requirements 
under Exemption 1.
    The third part of your question, however, goes to an 
additional element of the FOIA, I believe. I think you were 
talking about frequently requested records.
    Mr. Towns. Right.
    Mr. Metcalfe. That specifically is a reference to a 
provision of the FOIA that was added in 1996, Subsection 
A(2)(d) that basically says that if an agency has received a 
FOIA request and processed records and then either envisions, 
based upon its own experience, that there will be multiple 
requests in the future or in fact receives those multiple 
requests in the future for that same information, it has an 
automatic obligation to make that information affirmatively 
available in the reading room. If it is information generated 
or created by the agency rather after November 1, 1996, that 
has to be produced electronically in the electronic reading 
room.
    So the best way I can integrate those two elements together 
to answer your question in sum is to say if information is 
found not to be classified, sort of around the edges, if you 
will, of classification parameters, and if it is requested 
multiply, then we strongly encourage agencies, and they are 
doing a better and better job all the time, to meet that 
obligation under the 1996 amendments and to get that 
information out on their electronic FOIA Web sites.
    Mr. Towns. Thank you very much, Mr. Chairman. Thank you, 
and I yield back.
    Mr. Metcalfe. Thank you.
    Mr. Platts. Thank you, Mr. Towns.
    Mr. Gutknecht.
    Mr. Gutknecht. Thank you, Mr. Chairman.
    I want to come back to some of the points that have been 
raised by the panel that spoke first, and let me just put it 
into my own view. There are three or four things that I think 
we need to revisit as a Congress. Let me just throw them out 
and I would like to get your responses to them.
    First is the issue of whether or not we should have some 
kind of, the term I would use, sunset upon any exemptions, the 
idea of making each agency defend on some kind of a regular 
basis whether or not they should be exempted from provisions of 
FOIA.
    Second is clarifying the burden of proof. It is something 
that I think most of us thought we had already resolved, but 
apparently there are still some differences about that, whether 
or not that burden should be on the Government or the person or 
groups that are requesting information.
    I mentioned the mugshot issue. I think that needs to be 
clarified, and we ought to have uniform policy throughout the 
United States relative to the availability to the media, 
particularly of convicted felons. I understand here in the 
United States, we believe people are innocent until found 
guilt, and I would even acknowledge that we don't need to 
necessarily require that those be released if someone is simply 
charged with a crime.
    Finally, an issue that has been raised, and I would like to 
get your response to this, is whether or not maybe it is time 
to have some kind of an office of ombudsman where there is some 
kind of a fair or honest broker in this whole process because, 
well, I won't even get into because.
    I would just like your response on what you think about a 
sunset, the burden of proof. We have already talked about the 
mugshot issue, so I don't know if you want to respond to that. 
Then finally, the issue of some kind of an ombudsman. I would 
appreciate your responses to those.
    Thank you.
    Mr. Metcalfe. Well, Congressman Gutknecht, I suppose I have 
to divide those four into a couple of categories at least to 
give you the best answer that I am capable of giving today, and 
the first is that the sunset provision and the mugshot issue 
are those that were posed, if I understand you correctly, in 
light of possible perspective legislation. That is not 
something that I am in a position to speak to today. That is 
something that is sort of hypothetical. I know witnesses say 
they don't like to answer hypotheticals all the time, but that 
is something maybe for a later day. I don't want to, by that 
answer, convey lack of caring about those issues. It is just 
that it is a little bit premature at this point.
    With respect to the burden of proof, though, I think I can 
speak to that directly, again not in a legislative context 
because there might be a misconception there, and help me 
please if I misunderstand you or you misunderstand me. The law 
is very clear, I mean crystal clear, that the burden of proof 
is on the Government. That is something very distinct, not 
entirely unique but very distinct about FOIA and FOIA 
litigation. When we go to court, a FOIA requestor, now a 
plaintiff before the judge, can sit back and just say: Listen, 
I made a FOIA request. I am not happy with the response I got. 
That is it.
    Then the Government has the burden of proof in all respects 
going forward. So that is something that is very solid as a 
matter of FOIA statutory law and case law and practice as well.
    Finally, with the respect to the ombudsman, that might be 
in that first category because obviously that does connect to 
legislation that I think was introduced that we are not really 
discussing here today, but I can point out that it is a fact 
that the Office of Information and Privacy has an ombudsman 
function. We have had it for many years. I don't want to 
mislead the subcommittee by suggesting it is a very large scale 
activity, but that very same annual report that I mentioned 
earlier in response to Congressman Towns contains, at the end, 
a discussion of our ombudsman activity and also contains a 
citation to some publications where we have talked about that. 
So it is a fact that we have done that on an admittedly 
relatively small scale in our office for many, many years.
    Ms. Koontz. Most of these areas, I cannot comment on 
because I think our work hasn't been directed in these 
particular areas, but I did want to comment for a moment on the 
office of ombudsman, at least something related. What we have 
seen in our previous work, when we were particularly looking at 
fee-related sorts of issues, is that one particular agency that 
we studied, that communication between the agency and with the 
FOIA requestor was not always as clear as it needed to be. One 
of the things that we walked away from that study with was that 
agencies needed to say more about why they were making 
decisions and why they came out the way that they did because 
we found that in the absence of information, individuals filled 
in the blanks themselves and came up with all kinds of actual 
erroneous conclusions.
    So it would seem to me that related to this, one of the 
things that we probably need to do, which I think also isn't 
contained in the Executive order, and that is to improve the 
way we communicate with requestors, so that they actually 
understand the basis for what the decisions are.
    Mr. Gutknecht. Thank you, Mr. Chairman.
    Mr. Platts. Thank you, Mr. Gutknecht.
    I want to followup, Mr. Metcalfe, on that burden of proof 
issue. I don't have the exact language. I couldn't find it 
quickly in front of me. With the issuance of the Ashcroft memo 
that rescinded the Reno position, and I will paraphrase. Under 
Reno, it was find a way to comply and to make the information 
available, and Attorney General Ashcroft took a different 
approach where it was emphasizing the use of exemptions to deny 
the request. Am I paraphrasing that wrongly? If not, it seems 
that memo that is standing as of today is really trying to 
undercut the integrity of the right to know and the 
Government's right to explain why it shouldn't be released.
    Mr. Metcalfe. I do disagree with you very strongly, 
Chairman Platts, that the Ashcroft memo undercuts the integrity 
of anything, including FOIA administration. I can tell you that 
I am intimately familiar with both of those memoranda, and I 
think part of what you said does reflect a misconception or an 
over-generalization or an overstatement.
    You did use the phrase, different approach. I think, 
undeniably, the two memoranda take a somewhat different 
approach and that they are different in tone to be sure, but 
they cannot alter the burden of proof under the FOIA, which is 
built right into the statute itself. Again, having been very 
closely involved in the processes leading up to and including 
the issuance of those memoranda, I think they are best looked 
at--I have stated this publicly in many forums--as largely a 
matter of difference in tone and approach to the FOIA.
    Mr. Platts. How would you summarize the Ashcroft memo of 
its intent? If I am paraphrasing it inaccurately, how would you 
paraphrase its use of exceptions and how it is giving guidance?
    Mr. Metcalfe. I think the best paraphrase of it, Chairman 
Platts, would be to focus on one word in particular that 
appears over and over in the memo, and that is careful. The 
Ashcroft memorandum encourages agencies or urges Agencies to be 
careful in their FOIA decisionmaking. By that, I mean to say in 
their consideration of FOIA exemptions, whether the exemptions, 
pardon me, whether the interest involved in particular records 
are cognizable under exemption and whether the information 
should be withheld.
    Also, I should hasten to add, it does speak of the concept 
of discretionary disclosure. It does not advocate discretionary 
disclosure in the way that the Reno memorandum did. That is a 
change in policy to some degree but not to a complete degree, 
and it is not the radical change that has been portrayed in 
many quarters since late 2001 or early 2002.
    Mr. Platts. All right, I have learned as one of five kids 
that we sometimes have to agree to disagree in a respectful way 
because I do see it differently, especially in the tone. I 
would acknowledge and you are very much correct in saying it 
doesn't change the statutory burden.
    Mr. Metcalfe. I, in turn, concur with your characterization 
of tone, Chairman Platts. Absolutely, we are on exactly the 
same page in that respect.
    Mr. Platts. Yes, and that is, I guess, part of the concern. 
The intent, I think, of the Freedom of Information Act from the 
beginning was this is a Government of, for, and by the people, 
and when in doubt, be open with the exceptions of true National 
Security and personal privacy. I thought it was unfortunate 
that memo was issued and changed that tone from the top. We 
will have to disagree on maybe how it was interpreted.
    Mr. Metcalfe. If I could respectfully just add one more 
relatively small point or maybe not so small point with Ms. 
Koontz sitting here, on my side of the disagreement and that is 
GAO, not long after the issuance of the Ashcroft memorandum, 
undertook a study, I believe at the request of the predecessor 
of this subcommittee, if I am correct, and Ms. Koontz directed 
that study. It concluded that as a practical matter, the import 
or effect of it was not nearly as it had been portrayed or 
suggested in many quarters. Is that a fair characterization, 
would you say, Ms. Koontz?
    Ms. Koontz. I should probably clarify what we did at the 
request of Senator Leahy. Early after the Ashcroft memo was 
issued, we undertook a survey of FOIA personnel to determine 
what they thought the effect of this would be on discretionary 
disclosures, and at the time, 48 percent of the FOIA officers 
said that they didn't think that it would increase, decrease 
the likelihood of discretionary disclosures. However, there was 
a full third of the FOIA officers who did think that it was 
likely to decrease discretionary disclosures. Now that is 
entirely based on their views and that there was no way for us 
to verify that as a matter of fact.
    Mr. Metcalfe. I have to concur, Chairman Platts, that there 
certainly is an impact with respect to discretionary 
disclosures. Undeniably, although it is mentioned as a concept, 
as a basic point of practice in the Ashcroft memo, we are not 
advocating that under the Ashcroft memo nearly as much as we 
did under the Reno memo. That is absolutely so.
    Mr. Platts. Thank you.
    A final quick question and then if Mr. Towns has any other 
questions, and then we will need to move to our third panel.
    That is just, Mr. Metcalfe, you mentioned to a previous 
question from Mr. Towns about DHS and getting them to reply and 
what your response was when they didn't meet the deadline. You 
stated that through staff in your office, there were 
communications of where is it or why haven't you complied. Can 
you capture what was the main basis for their explanation? Why 
didn't they? Why did it take 5 weeks past a Presidentially set 
deadline for them to comply?
    Mr. Metcalfe. OK, I will try to answer that in two 
particular respects, Chairman Platts. The first thing is I 
should clarify that with DHS in particular, that was not 
something that was handled at the staff level in my office. I 
personally made a series of calls to a series of individuals at 
a very high level, basically the highest levels that one might 
imagine at DHS.
    Mr. Platts. Are you saying to the Secretary's Office of the 
Chief FOIA Office?
    Mr. Metcalfe. I am reluctant to go into detail about that, 
but I have no basis to disagree with your characterization. 
[Laughter.]
    I wanted to make very sure that this was well understood at 
DHS. By that time, I thought there was a darn good chance, not 
a certainty but a darn good chance that there would be a 
hearing at the end of July, and that is part of the landscape 
to be sure.
    As to what their circumstances were, I am reluctant to go 
into any detail that they disclosed to me because I think it 
might be more appropriate to ask DHS, and by that, I mean to 
say, and I don't mean to imply that there is some terrible 
thing that I know, that I am concerned about blurting out to 
their disadvantage. Far from the contrary, I can assure you in 
general that there was very positive, constructive, high level 
attention being paid to this, and that if you heard from DHS 
directly, you probably would reach the same conclusion.
    Mr. Platts. The final followup to that, and this certainly 
is asking your opinion because you only can give that with the 
question I am going to ask. If this hearing had not been 
scheduled for today, do you think that plan would have been 
submitted on Monday or would we still be waiting for it?
    Mr. Metcalfe. I would hesitate to hazard a guess as to 
that. I would be speculating even if it were educated 
speculation.
    Mr. Platts. Understood, it is a speculation, but what would 
be your best speculation you could offer?
    Mr. Metcalfe. My best answer is I am genuinely not certain.
    Mr. Platts. OK, I appreciate it.
    Ms. Koontz, any thoughts on the issue, the fact that it was 
5 weeks until we got it, 5 weeks late, and it happened to 
arrive or be issued, not public yet, 2 days before this hearing 
on this issue?
    Ms. Koontz. I think without the actions of the Department 
of Justice, we wouldn't have a DHS plan today, and I think it 
is probably important for you to know that the report we did 
receive essentially states that they believe that their plan as 
it exists right now is adequate and that they are going to 
reissue it anyway in 3 months.
    Mr. Platts. And they are going to come back in 3 months, 
right. So I read that to be that while we have to issue 
something because there is a hearing, but we are telling you up 
front it is really not a plan that we can act on.
    Ms. Koontz. Right.
    Mr. Platts. Really, from the fulfilling the intent of the 
requirement, we really don't have a compliance.
    Ms. Koontz. That would be correct.
    Mr. Metcalfe. If I add just one thing briefly, Chairman 
Platts, and again I am not suggesting that I am here carrying 
the water, so to speak, for DHS.
    Mr. Platts. I want to say, sincerely, your insights and 
your frankness have been very much appreciated. Your taking 
your responsibility such as Ms. Koontz referenced and your 
getting engaged personally with DHS, I think is admirable and 
we are glad for it.
    Mr. Metcalfe. I appreciate your comments. Frankly, I think 
it is characteristic of how we have taken our efforts very 
seriously throughout the implementation of the Executive order, 
including suggesting 27 possible areas for inclusion, not that 
they are mandatory, to use a word you used earlier, far from 
it.
    But there is one additional fact that I can throw out just 
for the record because I am aware of it. The position that 
holds responsibility over FOIA administration within DHS' 
structure is the Chief Privacy Officer. That person also has 
oversight, if you will, over FOIA as well, and the current 
incumbent in that position was named last Friday and took 
office just Monday morning. I wished him well among other 
things when I spoke with him Monday morning.
    Mr. Platts. How long was it vacant, the position, do you 
know?
    Mr. Metcalfe. I can provide a little bit of information. 
The first Chief Privacy Officer at DHS, Nuala O'Connor Kelly, I 
believe resigned or left Government, I am going to say about 
the second week of September of last year. Her Deputy, Maureen 
Cooney, was acting in that position, and I know Maureen 
announced not so very long ago that she would be leaving the 
Department sometime soon, and it was not long after that 
announcement that Hugo Teufel, who I had known when he was at 
the Department of the Interior in the Solicitor's Office, was 
named to replace Maureen.
    Mr. Platts. The reason I ask is I appreciate that the 
current officer is new, but this is something that they had 6 
months knowledge that it was due in June. So the acting, 
whoever was there being responsible for fulfilling an Executive 
order, there were persons there in a position that should have 
been working to fulfill the requirements of the Presidential 
order.
    Mr. Metcalfe. Chairman Platts, you sound just as I do when 
I am on the phone in a situation like that. As a matter of 
fact, I dare say you could very amply do my job with exactly 
that approach.
    Mr. Platts. I am not sure about that, especially because 
what perhaps you need a little more of is mandatory compliance 
authority versus advisory authority. Maybe it would make 
herding the sheep a little easier if you could tell them what 
to do rather than as far as encouraging them what to do.
    Mr. Metcalfe. Not to abuse your metaphor, but I think 
sometimes it is more like herding cats.
    Mr. Platts. I can imagine. [Laughter.]
    Mr. Towns, did you have anything else?
    Mr. Towns. I just have one question I would like to ask Ms. 
Koontz. Now that the Executive order has been issued and 
agencies have begun to comply, what are the areas of FOIA that 
will need addressing that we will need to?
    Ms. Koontz. There are many, many areas that agencies have 
identified for improvement, and that includes in reducing the 
backlog, in streamlining FOIA processing, in doing more 
information dissemination particularly via the Web, and then in 
solving all the sort of underlying issues that are barriers to 
better processing, faster processing, and better customer 
service.
    Mr. Towns. Is there anything we need to do on this side? I 
am talking about Members of Congress.
    Ms. Koontz. I think that you need to continue your 
oversight over what the agencies are doing, what Justice is 
doing, and I am hoping to supply you a more detailed report 
sometime soon.
    Mr. Towns. We are looking forward to receiving it.
    Ms. Koontz. Thank you.
    Mr. Towns. Thank you.
    On that note, I yield back, Mr. Chairman.
    Mr. Platts. Thank you, Mr. Towns.
    To both of our witnesses, again, our sincere thanks for 
your testimony here today and again your work day in and day 
out, very important work in both the oversight roles at the GAO 
and the day to day efforts at Justice. We are grateful for your 
efforts and look forward to continuing to work with you and 
your offices on this important issue of ensuring open and 
accessible Government.
    Mr. Metcalfe. Chairman Platts, if I could just raise on 
final point, that is particularly in light of I know there was 
some question or misconception at the hearing last year on May 
11, 2005. I plan to stay for the third panel and to be here 
during the entirety of this hearing, and if there is any 
further question that you or any other member of the 
subcommittee, I would be more than glad to attempt my best to 
respond to that question.
    Mr. Platts. We appreciate that one more indication of the 
serious approach you take to your responsibilities. Thank you.
    Mr. Metcalfe. Thank you, sir.
    Mr. Platts. We will stand in recess, again, for about 2 
minutes while we reset for the third panel.
    [Recess.]
    Mr. Platts. The subcommittee is reconvened.
    We are pleased, on our third panel, to have Ms. Tonda Rush. 
I am getting ahead of myself here, sorry.
    We are all set? OK.
    We reconvene with our third panel. We are pleased to have 
Ms. Tonda Rush, public policy director, National Newspaper 
Association, and Ms. Patrice McDermott, the director of 
OpenTheGovernment.Org. We appreciate your written testimony.
    If we could have you both stand, we will swear you in and 
then begin with your testimonies.
    [Witnesses sworn.]
    Mr. Platts. Thank you. You may be seated. The Clerk will 
note that both witnesses affirmed the oath.
    Ms. Rush, we will begin with you. We do appreciate your 
written testimonies as well as the background information that 
came with the testimonies. We will try to stay to roughly that 
5 minutes, but if you need to go over a little bit, we 
understand.
    Ms. Rush.

  STATEMENTS OF TONDA RUSH, PUBLIC POLICY DIRECTOR, NATIONAL 
    NEWSPAPER ASSOCIATION; AND PATRICE MCDERMOTT, DIRECTOR, 
                     OPENTHEGOVERNMENT.ORG

                    STATEMENT OF TONDA RUSH

    Ms. Rush. Good afternoon, Mr. Chairman and Ranking Member 
Towns. I appreciate the opportunity to be here today.
    I am Tonda Rush. I am the Director of Public Policy for the 
National Newspaper Association. We are a 2,500 member 
organization of community newspapers, weeklies and dailies. The 
organization is 121 years old. Our members are mostly family 
owned newspapers. They rely upon public records to inform their 
local communities.
    I appear here also on behalf of the Sunshine in Government 
Initiative. It is an informal network of nine media 
organizations which are listed in our written statement.
    My purpose here today is threefold: first, to support the 
subcommittee and the good work it has already done in examining 
the Freedom of Information Act and to note the contributions of 
Congressmen Smith, Waxman, and Sherman as well as Senators 
Cornyn and Leahy for their legislative proposals to improve the 
act; No. 2, to commend the progress created by Executive Order 
13392 but to note that it does not supplant the need for 
legislation; and No. 3, to suggest elements in the Open 
Government Act, H.R. 867, that we believe this subcommittee 
should consider.
    The Freedom of Information Act is too often met with 
indifference and sometimes outright hostility. If journalists 
find it difficult to use, a concerned citizen must find it 
nearly impossible. The free flow of information upon which our 
democracy rests depends upon the proper working of this law. 
Still, it is used by the persistent and by the determined. We 
detail in our written testimony, a sample of some news stories 
based upon FOIA research.
    Congress has often revisited this archive and restated the 
importance of FOIA. At the same time, this subcommittee has 
already recognized the problems with FOIA FE backlogs, 
unwarranted denials, and paucity of alternatives to litigation 
as a means of resolving disputes.
    Mr. Chairman, the President's Executive Order 13392 spurred 
the agencies to consider improvements. It was unquestionably a 
positive step forward, but the EO did not go far enough. It did 
not provide concrete incentives for speedier processing, nor 
did it discourage unwarranted denials.
    It also, perhaps most importantly, did not specifically 
charge the head of the agencies with treating FOIA requestors 
with the same seriousness that agencies treat their customary 
stakeholders. If a FOIA requestor was accorded the status, for 
example, that a pharmaceutical company receives from the FDA or 
a consulate staff would receive from the State Department, it 
would go a long way to increase our citizens' trust in their 
stakeholder role in democracy. Still, it was an improvement. It 
will lead to a better flow of information.
    However, Mr. Chairman, even a perfect Executive order could 
not substitute for action by Congress. Since 1955, when the 
early drafters of FOIA began their work, it was the member's of 
the people's House who recognized that meaningful access to the 
people's records would have to be guaranteed by Congress. This 
body has revisited FOIA periodically since 1966, and each time 
it rediscovers the importance of the congressional role.
    That role is critical here today, and we would like to 
point to some key elements in H.R. 867 for this subcommittee to 
explore. First, the bill proposes an ombudsman. This is an 
issue of keen interest to me because most of our members are 
small businesses. Even if the Federal Court appeals process 
worked perfectly, and it does not, very few news rooms can 
afford to use this remedy. The result is the general public 
finds Washington ever more distant and strange as their local 
media cannot adequately keep them informed as we need our 
voters to be. We believe it is time for Congress to consider a 
path of alternative dispute resolution.
    The Office of Information and Privacy has carried out a 
portion of this role admirably over the past few decades, but 
we believe Congress should examine the role models provided by 
the States such as Connecticut, New York, and Virginia where 
public offices exist to help members of the public to deal with 
records custodians. Some States like Texas use the Attorney 
General's Office in that role. Like our Justice Department, the 
Attorneys General are in a good position to insist upon 
compliance with law, but when the mediator and the Government's 
lawyer are the same, the Justice Department must serve two 
masters. In Texas, that problem is addressed somewhat through 
two separate divisions within the Attorney General's Office, 
but in Washington, that solution does not seem as viable. A 
solution tailored to the Federal structure is needed, and we 
hope to work with the subcommittee to design it.
    Second, Congress clearly needs to restore requestors' 
access to attorneys' fees. The footdragging of agencies and 
denying records right up to the courthouse door was once 
discouraged by fee awards if the requestor substantially 
prevailed in the settlement. Since the 2001 Supreme Court 
decision tightened standard for those awards, the agencies once 
again believe they have the leverage to deny requests until the 
very last minute without incurring fee awards.
    We also wish that Congress would put teeth into the 
deadlines in the statute. Delays are the largest category of 
complaint. They have always been so. A mediator could help some 
of that. Funding and training of agency staff will help some of 
that, but outright defiance of time limits will still occur and 
H.R. 867 address delays through forfeiture of most exemption 
claims.
    Finally, Mr. Chairman, the existence of the Exemption 
(b)(3) in the statute has created an open flank in the law that 
has bedeviled the Oversight Committee since day one. There are 
many ways to create exemptions by reference, and yet there is 
no central referral system or approval process to keep the FOIA 
from be nibbled to death by (b)(3)'s. H.R. 867 proposes one 
solution. There are other possibilities, but we believe a 
solution must be found.
    Other parts of the bill that are important to our 
organizations include a system for tracking numbers for 
requests, better reporting of agency performance, and an 
overall heightened attention to the public's right to know.
    We look forward to working with this subcommittee, Mr. 
Chairman, and exploring the legislation further and helping the 
subcommittee to carry out its oversight duties in the Freedom 
of Information Act.
    Thank you.
    [The prepared statement of Ms. Rush follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.095
    
    [GRAPHIC] [TIFF OMITTED] T4767.096
    
    [GRAPHIC] [TIFF OMITTED] T4767.097
    
    [GRAPHIC] [TIFF OMITTED] T4767.098
    
    [GRAPHIC] [TIFF OMITTED] T4767.099
    
    [GRAPHIC] [TIFF OMITTED] T4767.100
    
    [GRAPHIC] [TIFF OMITTED] T4767.101
    
    [GRAPHIC] [TIFF OMITTED] T4767.102
    
    [GRAPHIC] [TIFF OMITTED] T4767.103
    
    [GRAPHIC] [TIFF OMITTED] T4767.104
    
    [GRAPHIC] [TIFF OMITTED] T4767.105
    
    [GRAPHIC] [TIFF OMITTED] T4767.106
    
    [GRAPHIC] [TIFF OMITTED] T4767.107
    
    [GRAPHIC] [TIFF OMITTED] T4767.108
    
    [GRAPHIC] [TIFF OMITTED] T4767.109
    
    [GRAPHIC] [TIFF OMITTED] T4767.110
    
    [GRAPHIC] [TIFF OMITTED] T4767.111
    
    [GRAPHIC] [TIFF OMITTED] T4767.112
    
    [GRAPHIC] [TIFF OMITTED] T4767.113
    
    [GRAPHIC] [TIFF OMITTED] T4767.114
    
    [GRAPHIC] [TIFF OMITTED] T4767.115
    
    [GRAPHIC] [TIFF OMITTED] T4767.116
    
    [GRAPHIC] [TIFF OMITTED] T4767.117
    
    [GRAPHIC] [TIFF OMITTED] T4767.118
    
    Mr. Platts. Thank you, Ms. Rush. We appreciate, again, your 
testimony on behalf of your members and especially as a former 
newspaper boy myself.
    Ms. Rush. I am glad to hear that, Mr. Chairman.
    Mr. Platts. One of my early jobs as a teen, I had a Sunday 
route in my neighborhood. In fact, when I ran for the 
Statehouse, that neighborhood was one in which I must have done 
an OK job because I did very well in that neighborhood at the 
ballot box for my first campaign. I have fond memories of 
delivering the paper and actually remain a diehard reader of 
newspapers. I begin each morning in my District with being able 
to commute daily to Washington from Pennsylvania. I rarely 
leave the house without reading my morning paper, local morning 
paper, from front to back.
    Ms. Rush. I am glad to hear that.
    Mr. Platts. I try to do the evening one. I maybe don't read 
the evening one as thoroughly because it is usually about 
midnight when I get to it. We are glad to have the success of 
our newspapers throughout the country.
    Again, thanks for your testimony.
    Ms. Rush. Thank you, Mr. Chairman.
    Mr. Platts. Ms. McDermott.

                 STATEMENT OF PATRICE MCDERMOTT

    Ms. McDermott. Thank you, Mr. Chairman and Ranking Member 
Towns for the opportunity to speak today on the agency's 
responses to Executive Order 13392, and to the broader issues 
you raised in your letter of invitation to participate in this 
hearing.
    My name is Patrice McDermott. I am the Director of 
OpenTheGovernment.Org, a coalition of journalists, government, 
consumer and good government groups, environmentalists, labor, 
and others united to make Federal Government a more open place 
in order to make us safer, strengthen public trust in 
Government, and support our democratic principles.
    As you and the members of the subcommittee are clearly 
aware, July 4th was the 40th Anniversary of the Freedom of 
Information Act, and that it was created to ``ensure an 
informed citizenry vital to the functioning of a democratic 
society, needed to check against corruption, and to hold the 
Governors accountable to the governed.''
    In recognition of this important milestone in the history 
of disclosure of agency information, OpenTheGovernment.Org in 
collaboration with 12 organizations including Ms. Rush's and 
many individuals within them undertook a look at the sample of 
the plans submitted by Federal agencies in response to the 
Executive order. That report is titled FOIA's 40th Anniversary: 
Agencies Respond to the President's Call for Improved 
Disclosure of Information, and I request that the report and 
the two attachments submitted with it be made part of the 
hearing record.
    Mr. Platts. Without objection.
    Ms. McDermott. Thank you.
    For the purposes of this hearing, I want to focus on two of 
the improvement areas listed by the Department of Justice in 
its implementation guidance. These two are numbers one and two: 
affirmative disclosure, posting frequently requested records, 
policy manuals, policy manuals and FAQs on Web site, and two, 
proactive disclosure on Web of publicly available information.
    These improvement areas seem to me to be the ones that have 
the most impact on the ability of the general public to 
understand what an agency does and what kind of information it 
creates. They give us an opportunity to discuss questions you 
raised in your letter, and they are illustrative of an ongoing 
problem confounding efforts to institute procedural reforms to 
FOIA. These are problems that have been identified several 
times today, the lack of enforcement and thus the ramifications 
for agency heads when reforms are ignored.
    In response to your first question in your letter of 
invitation, I would say that the public's right to know what 
its Federal Government is doing and what is being done in the 
name of the public through the Government and those to whom it 
delegates authority and responsibility are fundamental to the 
proper functioning of our form of government. I agree with 
James Madison's famous statement that a people who intend to 
govern themselves must arm themselves with the power that 
knowledge gives. I fear that the public is being disarmed by 
actions in the executive branch, some of them sanctioned by the 
Congress, that serve to restrict and diminish the public's 
access to information by and about our Government.
    In response then to your second question, whether I think 
the Federal Government is currently providing requestors with 
the most responsible disclosure possible under FOIA, I would 
say no, although I have to admit I am not entirely sure what 
the phrase, responsible disclosure, means.
    The Freedom of Information Act is a key component in the 
public's right to have access to such information, but it has 
traditionally been primarily a reactive component. The 1996 
EFOIA amendments were in part intended by Congress as a step 
toward changing the passive stance of Federal agencies when it 
comes to disclosing records and information about records. 
These required, these amendments required among other 
provisions, that a new category of records which we have 
already heard discussed today, repeatedly requested records be 
made available to the public online. Importantly, it is not up 
to the agency to decide if it is interested in disseminating 
the information. It depends solely on whether outsiders submit 
multiple requests for the information or the agency anticipates 
those requests.
    In my written testimony, I note studies done between 1997 
and 2002, including the GAO studies, indicating that while 
agencies were making progress and making material required by 
EFOIA available online, not all the required materials were yet 
available. According to the GAO, the situation ``appears to 
reflect a lack of adequate attention and continuing review by 
agency officials to ensure that these materials are 
available.''
    Turning to the narrative commentary provided by our 
reviewers on affirmative disclosure and proactive 
dissemination, what is most striking to me is the future-
oriented language used to describe what most of the agencies 
plan to do in these areas. Bear in mind that we are almost 10 
years out from the passage of the 1996 amendments and over 9 
years beyond the point at which most of the requirements set 
out therein were supposed to have been met, and yet repeatedly 
in the narratives, we find that the agencies will meet these 
statutory requirements with a promise date often being mid-
2007. The lack of serious implementation of the 10 year old 
amendments to FOIA is indicative of one of the serious problems 
with any procedural reforms to FOIA. There is no enforcement 
mechanism provided and no repercussions for ignoring these 
requirements.
    In my estimation, given the responses in these two areas of 
even the agencies with some responsibility for the 
implementation of FOIA, which would be the Department of 
Justice and OMB, the Executive order will likely have minimal 
effect on the Federal Government's approach to providing 
information under FOIA. Similar conclusions can be drawn from 
the table attached to our report.
    What can Congress do? The easy and hard answer is to 
appropriate funds specifically targeted for prompting, for 
promoting prompt disclosure of Government information that is 
appropriate for such disclosure. Many ideas have been floated 
in our access community as to how to do that, and we would be 
pleased to meet with you and your staff to discuss them.
    A second opportunity for Congress is to pass the bipartisan 
Open Government Act. While it is not a panacea for all of our 
concerns with the implementation of FOIA, it is a large step in 
the direction of meaningful and accountable procedural reforms. 
H.R. 1620 in the House and H.R. 2331 are examples of other 
legislation that advances the public's right to know.
    The third thing Congress can do is conduct frequent 
oversight and hold agencies and those with oversight 
responsibility in the executive branch accountable. We 
appreciate the intention of the House Government Reform 
Committee and this Congress and this subcommittee in particular 
to FOIA and the difficulties encountered by the public in 
attempting to exercise its right to know and to gain access 
held by and for the Federal Government. Indeed, Mr. Chairman, 
this hearing you held in this committee in May of last year 
identified and documented many of those difficulties.
    More is needed, however. Until there is a clear, tangible 
reason to pay attention and meet obligations, it is a logical, 
if regrettable, use of resources to ignore those mandates that 
have no repercussions. There is no followup, no meaningful 
followup built into the Executive order. It is up to Congress, 
and it is appropriately your responsibility. The staff and 
partners of OpenTheGovernment.Org look forward to continuing to 
work with you to improve and strengthen the public's access to 
Federal Government information.
    I will be happy to answer any questions you may have. Thank 
you.
    [The prepared statement of Ms. McDermott follows:]

    [GRAPHIC] [TIFF OMITTED] T4767.119
    
    [GRAPHIC] [TIFF OMITTED] T4767.120
    
    [GRAPHIC] [TIFF OMITTED] T4767.121
    
    [GRAPHIC] [TIFF OMITTED] T4767.122
    
    [GRAPHIC] [TIFF OMITTED] T4767.123
    
    [GRAPHIC] [TIFF OMITTED] T4767.124
    
    [GRAPHIC] [TIFF OMITTED] T4767.125
    
    [GRAPHIC] [TIFF OMITTED] T4767.126
    
    [GRAPHIC] [TIFF OMITTED] T4767.127
    
    Mr. Platts. Thank you, Ms. McDermott. Again, our thanks for 
both your written testimonies and your oral testimonies here.
    I want to maybe start the questions again with just a broad 
issue. Clearly, the support of both of you here and who you 
represent for the legislative proposals and going further. But 
looking at specifically the Executive order and where we have 
come in now the last 7 months since it was signed, what would 
you highlight as the most significant improvement or change you 
have seen in response to the Executive order, and are there any 
specific examples of a FOIA request that you are aware of 
through your own efforts or those you work with that you think 
has been improved because of the Executive order having been 
issued?
    Ms. McDermott. I will defer to Ms. Rush because I don't 
have any information.
    Ms. Rush. I think the fact that the Executive order created 
sunlight on the process was by itself important.
    There are two important components of making the FOIA work 
right. One is the efficient management of it, which is the 
purview of the executive branch, and the other is the 
legislative mandate which is the purview of the Congress.
    I think you can't really omit either of those and expect 
the law to work properly. The fact that the Executive order 
asked the agencies to look at their processes and come up with 
specific milestones was a positive step. Some of the plans were 
very, very specific. The Defense Department, for example, 
issued, in a manner that I have come to expect from that agency 
in compliance with FOIA, very specific dates, very specific and 
measurable objectives, filed the plan on time, and suggested 
some things that ran from as simply as moving the office to a 
place where it could be seen to trying to make the software 
work better. Several of the agencies did that sort of thing.
    I have noticed over the years that the agencies have gone 
from learning how to redact documents, for example, from 
putting a magic marker over the words, where you could hold the 
sheet of paper up and read through them, to putting a magic 
marker on first and then photocopying, so that you couldn't 
read through them. Now the agencies are talking about doing 
training on scanning documents in and trying to do redaction 
through text editors.
    The process itself is great, and I think it was important. 
It was very welcome, given the climate we have been dealing 
with. I don't think it will, it can come close to substituting 
for the work of the subcommittee, however, and I have not seen 
any concrete results yet. I think it is probably a little to 
soon.
    Mr. Platts. OK.
    Ms. McDermott. I agree that the process itself is very 
important, and I think that one of the facts that it did is to 
raise FOIA within the agencies, raise the visibility of it 
within the agencies. As I stated in my written testimony, I 
think FOIA officers and records officers as well are often the 
stepchildren in Government agencies. Their work is not 
respected until the agency gets sued. So I think it has done 
that very important service of raising the visibility.
    And I think it has highlighted, for many of us outside of 
the agencies, some of the real and very concrete problems that 
the agencies face. Not being able to afford a scanner or 
photocopier, those sorts of things are really pretty appalling. 
But in terms of actual real life impacts on requestors, I can't 
speak to any.
    Mr. Platts. Ms. Rush, you referenced both in your written 
testimony and in your answer to the question, DOD as an example 
of a plan that seems to be well thought out and with timeframes 
and goals that they are going to pursue. Given that DHS, in 
essence, has not really submitted a plan and they are 
acknowledging they don't have a plan that they are going to 
act--they are going to revise it and resubmit it--would the DOD 
plan be a good example, especially given that DHS and DOD have 
similar sensitivities with some of the issues they deal with 
and the operations they are engaged in, that DHS should be 
looking at DOD as an example of what you think is a good 
approach to the FOIA plan?
    Ms. Rush. That is an interesting question, Mr. Chairman. I 
think the response of DHS underlines one of the key seams, I 
think, of our beliefs here, and that is it is the oversight of 
Congress that makes things happen. To the extent that you got a 
plan was because you were having a hearing. So we welcome that 
part of it.
    Over the 25 or so years that I have worked on access in 
Washington, I have learned to appreciate the culture in the 
Defense Department for compliance. Sometimes they don't tell 
you much, but they don't tell you on time. For the most part, 
most of the agencies within the Defense Department, and there 
is some inconsistency within the Pentagon, do try to meet the 
deadlines. They do try to comply. They do try to follow the 
orders. They do listen very carefully to what Mr. Metcalfe 
gives them as guidance. To the extent that the culture believes 
in efficient operation of the statute, I think it has set a 
model for the agencies, and I would commend it to the extent 
that the culture works hard at making information available in 
the public interest.
    I think we might have some disagreements with policy 
interpretations, but again as far as the Executive order, it is 
the President's responsibility to make the trains run on time, 
and I think the Executive order tried to do that.
    Mr. Platts. Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman. Let me begin 
by first thanking both of you for your testimony.
    I guess I want to start with you, Ms. Rush, in reference to 
you indicated that legislation is still needed. Are there 
specific kinds of things that you think we should try and put 
into a bill?
    Ms. Rush. There certainly are, Mr. Town, and I appreciate 
that question. We have been very supportive of H.R. 867. We 
know that there are some parts of it probably needs some 
fleshing out still, and I think the bill sponsors agree with 
that.
    If I were picking two that I would ask you to focus on, the 
two I would choose would be to pursue the ombudsman concept. 
Particularly for the reporters of the newspapers I represent, 
who can be small staffs, going to Federal Court is never going 
to be a good answer. It is too long. It is too time consuming. 
There is lost opportunity while they spend time on it 
themselves. Even if they get their attorneys' fees back, it is 
not practical. We have seen the States come up with some good 
models that I think the Federal Government could explore and 
should explore at this point, particularly since we have had 
some experience with how this, with how the enforcement part of 
this act works.
    The second one is the issue about the (b)(3) exemptions. I 
know this subcommittee has looked at a number of them that have 
been proposed in this Congress. We have worked with many of you 
and your staffs on those.
    Congress needs to present a solution to have some way to 
have these proposals vetted before the committee that oversees 
the Freedom of Information Act. It has been a problem for 
years. It has been one that never quite been solved. Frankly, I 
think as you have experienced in some of the work that you have 
done and the chairman has done, often when you find the bill 
sponsors willing to sit down and talk to you about how the 
Freedom of Information Act really works, they find to their 
great surprise that there are already exemptions and a process 
to deal with the concerns that they were raising. I think that 
trying to make that process work right is the role of the 
subcommittee, and we would really support some continued dialog 
on a solution here.
    Mr. Towns. Thank you very much.
    Ms. McDermott, you mentioned the lack of enforcement. Do 
you have some specific kinds of things that you think should be 
considered that are not being considered?
    Ms. McDermott. Well, yes.
    Mr. Towns. I know you mentioned prompt disclosure.
    Ms. McDermott. I think the problem has been that, while the 
Department of Justice is given certain responsibilities and 
they do meet them very well, as Mr. Metcalfe said, they don't 
have, they are not given statutory responsibility for enforcing 
FOIA, nor is the Office of Management and Budget. In my 
testimony, I use their responses on the first, those two 
disclosure items as exemplary or non-exemplary.
    I think that the approach perhaps that is taken in 867, the 
Office of Government Information Service, there needs to some 
entity in the executive branch. Certainly, Congress needs to do 
oversight, and that is a given, ongoing and firm oversight, but 
there needs to be some entity in the executive branch that has, 
outside of the agencies themselves, responsibility for ensuring 
compliance.
    I think the best model that we have seen so far is this one 
in 867 and in 394 in the Senate, this office in the 
Administrative Office of the United States that would be a body 
that could do audits, that could ensure compliance, could issue 
reports. You know, we would hope it would have some subpoena 
authority and a way to actually force agencies to comply with 
timely disclosure, with getting information up on their Web 
sites, with all of the things that required by the law. But 
there has to be some entity whose sole responsibility that is.
    Mr. Towns. Let me thank both of you for your testimony.
    Mr. Chairman, on that note, I yield back.
    Mr. Platts. Thank you, Mr. Towns.
    Apparently, our series of votes will be, they think, in 
about the next 10 minutes. So let me try to get in a couple 
more questions here before we break.
    I guess I want to followup first. It is really an extension 
of what Mr. Towns just asked. Ms. Rush, you really focused on 
as far as priority, and the ombudsman clearly won. I think that 
kind of goes in line with Senator Cornyn when he talked about 
ensuring compliance, that we don't have to go to court, that we 
have a better compliance and that results in more timeliness 
and addresses some of the other issues.
    On the other ones, the issue of broadening exceptions to 
the policy, the fact that there is often not a timely response 
or it varies from sometimes very good but sometimes very bad, 
the very extreme example of 1999 still being an open case, the 
fact that aren't really incentives or consequences in place, 
the attorneys' fees issue because of the 2001 court case of 
those, if you are going to have to compromise to move 
legislation, whether it is at the community level or the floor 
level, which of those would be least important, meaning you 
would see--really, Ms. McDermott, both of you--that you would 
be most willing to say, well, that is something we could work 
on another day if we had to, to get these other aspects of the 
bill or bills through the House and considered by the Senate 
and ultimately to the President?
    What do you think is least important in that give and take?
    Ms. Rush. It is hard to give anything away in that process 
because there are so many things.
    Mr. Platts. I understand.
    Ms. Rush. There are so many things that we need to think 
about.
    Mr. Platts. I share the belief. I never want to give away, 
but sometimes you have to.
    Ms. Rush. Let me just say this. I think a number of the 
things that the bill tries to get at in terms of efficiency and 
efficiency in a cost-conscious way also for the Federal 
Government through the tracking numbers and the report 
processes and some of the things that the bill contemplates. I 
think if there were a more effective alternative dispute 
process, some of those things might melt away, frankly.
    It is tempting to see this ombudsman as somebody that kind 
of jumps into the agencies and finds the records and makes the 
agency respond, but when you see this happen as a practical 
matter, at the State level particularly, very often the person 
that functions there works just as much with the requestor to 
try to get the request to some more concrete, manageable terms, 
so that the agency can really put its hands on the records, 
review them promptly, and get an answer. I think sometimes with 
the complex requests, that may be one of the problems. As 
counsel to news media organizations, I have often suggested to 
reporters when they want to write a letter that says please 
send me all your files on fill in the blank, that I may be on 
Medicare before they ever get an answer, and that is not 
practical.
    Not all requestors have access to offices like ours. 
Certainly, the Reporters Committee for Freedom of the Press 
does dozens and dozens of these in a week. But what happens to 
the member of the general public? Who talks to them? Who helps 
them how to figure out how to find their way through this 
labyrinth that is our Government?
    I would start there, frankly, Mr. Chairman, and I would 
give that process a chance to work a little bit and see what we 
learn from it. I think it has some real fertile ground for 
progress.
    Mr. Platts. Ms. McDermott.
    Ms. McDermott. I would agree. I think, you know, there are 
two tracks to take, and this bill takes both of them. One is a 
punitive track that imposes costs on the agencies, taking 
exemptions, for instance, if they don't get their disclosure 
made on a timely basis.
    And then there is this assistive track, both for the public 
and for the agencies. Although I firmly believe that there is 
greater need for enforcement because the agencies do fail to 
comply with many aspects of this, I think that probably in the 
near term, the assistive track is more likely to bear fruit for 
the public and for the agencies themselves and therefore for 
our Government than the punitive track, and it is more likely, 
I think, to be able to move forward.
    So if I had to jettison something, it would probably be the 
more punitive aspects, although I am, I think that the 
attorneys' fees is really a problem that needs to be addressed 
very seriously because it is a perverse incentive to the 
agencies.
    Mr. Platts. If you combine the two, the ombudsman and the 
facilitating of the alternative dispute approach, and you 
reverse the consequences of that 2001 decision on attorneys' 
fees, the hope is then that you don't need to have the 
punitive.
    Ms. McDermott. One hopes.
    Mr. Platts. Do this or else this happens. You really get to 
that timeliness, that compliance.
    Ms. Rush. That would be the hope.
    Mr. Platts. Maybe you need to come back and do something 
more, but the hope is that would do it.
    Ms. Rush. I think it would be worth giving that kind of a 
process a chance to work and see what impact it has. Clearly, 
the Federal Court process has been frustrating. Congress, when 
it passed the law, didn't realize how long it would take to get 
through Federal Courts, and in 1974, made these cases, put 
these cases on the expedited track. Unfortunately, Congress 
came along later and put some other things on expedited track. 
Now everything is expedited, and so nothing is expedited. So 
that hasn't worked all that well.
    I don't want to suggest, however, that we think that 
Federal Appeals Court processes shouldn't continue to also be 
available. There will be those cases where there are questions 
of law that need to be tested, and that there will be 
requestors who have the means and the interest and the time to 
get a response to that.
    I think that is not, certainly, it is not the typical news 
media request. The typical news media request, I think, would 
happen more frequently. I think we would have better quality 
reporting in your local media, which I know most Members of 
Congress would welcome on issues that deal with Washington, if 
there was a process that worked faster and got a more concrete 
result.
    Ms. McDermott. The one thing that I would caution is that 
in instituting something like this at a Federal level, the 
volume that this office would be likely to have to deal with 
could be staggering.
    Mr. Platts. That was my followup. What would you envision 
from a percentage of requests made, even a guesstimate you 
would want to make of how many would end up with an ombudsman 
involved?
    Ms. Rush. I would, if I were designing it, and I have to 
tell you we have thought about this a long time, and we don't 
have a process even fixed in our own minds that we are 
perfectly confident of, but I think that I wouldn't have the 
mediator or the ombudsman, whatever you chose to call it, into 
the process until there had been at least an agency denial or a 
flagrant disregard for the time limits. I think that would 
cutoff some of them. It could be that some of the cases that 
are purely Privacy Act type requests would never get to that 
point. A lot of these are I would like my records, please, to 
the VA or whoever.
    I think there are some ways to design it, certainly in the 
early years, so that you could try to sort of stem the flow a 
little bit and give it a fair chance to see how it works.
    Ms. McDermott. I think the corollary to this is the issue 
that I raised in my written testimony, and that is the failure 
of the agencies to implement some of the aspects of the EFOIA 
amendments. I think that if agencies were to comply, which they 
are still not doing as far as I know, with the requirements to 
put their record schedules up online, so that the public can 
learn what kinds of records an agency creates and what offices 
are likely to have them, that would cut down on the over-
requesting and help people to hone in their request. It might 
also increase requests because people would realize what kinds 
of records there are, but I think that with this move toward a 
mediator or ombudsman or arbitrator, there has to be some 
further work with the agencies to make their own information 
more transparent and more accessible to the public.
    Mr. Platts. The final question I have before we break is we 
have talked about a number of States, and our colleagues in the 
first panel referenced some. Again, I am putting you on the 
spot. If you had to pick one State's approach--Connecticut, New 
York, whatever it may be--which would it be of those that you 
are familiar with?
    Ms. McDermott. I don't have enough information.
    Ms. Rush. So far from what I have seen, Virginia's process 
seems to be working well. The process is New York has worked 
well. The one issue, I think----
    Mr. Platts. You are starting to sound like a politician 
here.
    Ms. Rush. Yes, I know.
    Mr. Platts. Virginia and New York, get Connecticut in 
there.
    Ms. Rush. Like my clients say, I want an attorney with one 
hand, so I don't get on the first hand and then on the second 
hand.
    None of them are perfect. None of them are perfect, and I 
think New York probably is the one I am most familiar with. The 
thing that is imperfect about that is that individual serves at 
the pleasure of the Governor, and he has said many times that 
he only gets along doing what he is doing because he has 
irritated everyone almost equally. I am not sure that in an 
environment like Washington that you would want to make that 
open flank, so that you had an ombudsman that had to please the 
executive branch. The whole idea of this is to have a check and 
balance.
    So I would look at trying to set up something that worked 
more like the Virginia, I think model, if I could, and I would 
try to create it in such a way that there was some direct 
feedback to Congress.
    Mr. Platts. Mr. Towns, did you have anything else?
    Mr. Towns. I have no further questions.
    Mr. Platts. I want to thank both of you for your 
presentations. Your written presentations certainly gave us a 
wealth of information and issues to think about as we move 
forward and in your participation here in the panel as well.
    We certainly want to continue moving forward in the 
oversight role and as we look at actually trying to see how we 
can advance the cause of some legislative efforts to tighten up 
the wise efforts of our predecessors 40 years ago. So we 
appreciate your testimony and will continue to work with you 
and your organizations as well as the other presenters today as 
we go forward.
    We will keep the record open for 2 weeks for any additional 
information and, again, my thanks to you for participation.
    This hearing stands adjourned.
    [Whereupon, at 4:25 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]

[GRAPHIC] [TIFF OMITTED] T4767.128

[GRAPHIC] [TIFF OMITTED] T4767.129

[GRAPHIC] [TIFF OMITTED] T4767.130

[GRAPHIC] [TIFF OMITTED] T4767.131

[GRAPHIC] [TIFF OMITTED] T4767.132

[GRAPHIC] [TIFF OMITTED] T4767.133

[GRAPHIC] [TIFF OMITTED] T4767.134

[GRAPHIC] [TIFF OMITTED] T4767.135

[GRAPHIC] [TIFF OMITTED] T4767.136

[GRAPHIC] [TIFF OMITTED] T4767.137

[GRAPHIC] [TIFF OMITTED] T4767.138

[GRAPHIC] [TIFF OMITTED] T4767.139

[GRAPHIC] [TIFF OMITTED] T4767.140

[GRAPHIC] [TIFF OMITTED] T4767.141

[GRAPHIC] [TIFF OMITTED] T4767.142

[GRAPHIC] [TIFF OMITTED] T4767.143

[GRAPHIC] [TIFF OMITTED] T4767.144

[GRAPHIC] [TIFF OMITTED] T4767.145

[GRAPHIC] [TIFF OMITTED] T4767.146

[GRAPHIC] [TIFF OMITTED] T4767.147

[GRAPHIC] [TIFF OMITTED] T4767.148

                                 
