[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
     THE STATE OF THE FOIA: ASSESSING AGENCY EFFORTS TO MEET FOIA 
                              REQUIREMENTS 

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

                                HEARING

                               before the

                  SUBCOMMITTEE ON INFORMATION POLICY,
                     CENSUS, AND NATIONAL ARCHIVES

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 14, 2007

                               __________

                           Serial No. 110-56

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California               TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of   VIRGINIA FOXX, North Carolina
    Columbia                         BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
JIM COOPER, Tennessee                ------ ------
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
                  David Marin, Minority Staff Director

   Subcommittee on Information Policy, Census, and National Archives

                   WM. LACY CLAY, Missouri, Chairman
PAUL E. KANJORSKI, Pennsylvania      MICHAEL R. TURNER, Ohio
CAROLYN B. MALONEY, New York         CHRIS CANNON, Utah
JOHN A. YARMUTH, Kentucky            BILL SALI, Idaho
PAUL W. HODES, New Hampshire
                      Tony Haywood, Staff Director










































                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 14, 2007................................     1
Statement of:
    Hoyt, Clark, McClatchy Newspapers, on behalf of the Sunshine 
      in Government Initiative; Caroline Fredrickson, director, 
      Washington Legislative Office, American Civil Liberties 
      Union; and Meredith Fuchs, general counsel, National 
      Security Archive at George Washington University...........    80
        Fredrickson, Caroline....................................    93
        Fuchs, Meredith..........................................   115
        Hoyt, Clark..............................................    80
    Koontz, Linda, Director, Information Management, Government 
      Accountability Office; and Melanie Ann Pustay, Acting 
      Director, Office of Information and Privacy, U.S. 
      Department of Justice......................................     7
        Koontz, Linda............................................     7
        Pustay, Melanie Ann......................................    58
Letters, statements, etc., submitted for the record by:
    Clay, Hon. Wm. Lacy, a Representative in Congress from the 
      State of Missouri, prepared statement of...................     3
    Fuchs, Meredith, general counsel, National Security Archive 
      at George Washington University, prepared statement of.....   118
    Hoyt, Clark, McClatchy Newspapers, on behalf of the Sunshine 
      in Government Initiative:
        Followup questions and responses.........................   149
        Prepared statement of....................................    83
    Koontz, Linda, Director, Information Management, Government 
      Accountability Office, prepared statement of...............    10
    Pustay, Melanie Ann, Acting Director, Office of Information 
      and Privacy, U.S. Department of Justice, prepared statement 
      of.........................................................    60
    Romero, Anthony D., executive director, American Civil 
      Liberties Union, prepared statement of.....................    96
    Yarmuth, Hon. John A., a Representative in Congress from the 
      State of Kentucky, prepared statement of...................   191


     THE STATE OF THE FOIA: ASSESSING AGENCY EFFORTS TO MEET FOIA 
                              REQUIREMENTS

                              ----------                              


                      WEDNESDAY, FEBRUARY 14, 2007

                  House of Representatives,
   Subcommittee on Information Policy, Census, and 
                                 National Archives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:35 p.m. in 
room 2154, Rayburn House Office Building, Hon. Wm. Lacy Clay 
(chairman of the subcommittee) presiding.
    Present: Representatives Clay, Maloney, Yarmuth, Hodes, 
Turner, and Sali.
    Staff present: Tony Haywood, staff director/counsel; Alissa 
Bonner, Adam C. Bordes, and Anna Laitin, professional staff 
members; Jean Gosa, clerk; Leneal Scott, information systems 
manager; Chas Phillips, minority counsel; and Benjamin Chance, 
minority clerk.
    Mr. Clay. The Subcommittee on Information Policy, Census, 
and National Archives of the Committee on Oversight and 
Government Reform will now come to order.
    Today's hearing, our first of the 110th Congress, will 
examine issues relating to executive branch agency compliance 
with the Freedom of Information Act.
    Without objection, the Chair and ranking minority member 
will have 5 minutes to make opening statements, followed by 
opening statements not to exceed 3 minutes by any other 
committee member who seeks recognition.
    Without objection, Members and witnesses may have five 
legislative days to submit a written statement or extraneous 
materials for the record.
    Let me start by saying good afternoon and welcome to the 
first hearing of the 110th Congress before the Subcommittee on 
Information Policy, Census, and National Archives. It is my 
honor and pleasure to be here as chairman. I look forward to 
continuing my working relationship with the subcommittee's 
distinguished ranking minority member, Mr. Turner, and let me 
also extend a warm welcome to our returning members and new 
members, as well.
    One of the cornerstones of our democracy is the ability of 
citizens to have timely access to Government information and 
records of all kinds. Enacted over four decades ago, the 
Freedom of Information Act [FOIA], strengthened this ability. 
Under FOIA, any person has a right, enforceable in court, to 
obtain access to Federal agency records, except in very limited 
circumstances.
    Regrettably, we have witnessed a recent decline in the 
accessibility and transparency of Government information. In 
particular, we have seen the Bush administration establish 
policies that encourage executive branch agencies to withhold 
information that might otherwise become available to the public 
by way of the FOIA request. Thus, I am deeply concerned that 
this administration appears to be shielding information that 
ought to be accessible to the public.
    In 2005, President Bush issued Executive Order 13392 in 
order to reduce the backlog of requests and improve the overall 
management of FOIA activity. While this was a good first step, 
the Executive order has not addressed a number of significant 
barriers to open government. These barriers include the 
administration's own application of restrictive standards for 
disclosure and increased use of FOIA exemptions to withhold 
non-sensitive information and the application of pseudo 
classifications for many agency reports.
    Last fall this subcommittee approved bipartisan legislation 
to improve the FOIA process in several key areas. This bill, 
the Open Government Act of 2005, H.R. 867, proposed to reduce 
the number of disputed FOIA requests through mediation and 
improve the information that agencies report to Congress 
concerning their FOIA activities.
    In my view, this legislation provided a practical and 
measured approach to remedying the problems identified by the 
requestor community, and I believe it is an excellent starting 
point for legislation in this Congress.
    Today's hearing offers an opportunity to learn where the 
FOIA process is failing, what benefits are being realized from 
the recent Executive order, and whether legislation to remedy 
the aforementioned problem is required.
    I am pleased that we have a very distinguished and expert 
group of witnesses to help us sort through these issues.
    Appearing on our first panel will be Linda Koontz, Director 
of Informational Policy at GAO and Melanie Ann Pustay, Acting 
Director of the Justice Department's Office of Investigation 
and Privacy.
    Our second panel will feature three private sector 
witnesses: Clark Hoyt, on behalf of the Sunshine in Government 
Initiative; Caroline Fredrickson, director of the Washington 
Legislative Office of the American Civil Liberties Union; and 
Meredith Fuchs, general counsel for the National Security 
Archive at G.W. University.
    I thank all of our witnesses for joining us today and we 
look forward to your testimony.
    [The prepared statement of Hon. Wm. Lacy Clay follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. I now yield to the minority member here--from 
Idaho?
    Mr. Sali. From Idaho, Mr. Chairman.
    Mr. Clay. Thank you. I yield 5 minutes to the gentleman if 
you have an opening statement.
    Mr. Sali. Mr. Chairman, I don't really have an opening 
statement, just to say that I am happy to be a member of the 
subcommittee and am looking forward to working with you the 
next 2 years.
    Mr. Clay. Thank you, and welcome to the committee.
    Are there any other members of the committee with an 
opening statement? The gentlelady from California.
    Mrs. Maloney. From New York.
    Mr. Clay. From New York. I am sorry.
    Mrs. Maloney. The information capital of the world.
    Mr. Clay. You are right. I yield three.
    Mrs. Maloney. I want to thank Chairman Clay and Ranking 
Member Turner--I am sure he is on his way--for holding this 
very important hearing on FOIA. I would say that the issue of 
openness in our Government is absolutely critical to our 
democracy, and it is important that the press and others and 
citizens and everyone have access to this information.
    I have been pushing for more openness and Government 
transparency since I came to Congress in 1992, and was pleased 
to be a lead sponsor on the Electronic Freedom of Information 
Act of 1996. That is a very important piece of legislation that 
was intended to provide the Government, the public, and press 
greater access and efficiency to information through the 
electronic format, and it was intended to bring FOIA from the 
technological Stone Age into the Information Age. I am very 
interested in hearing how is this working, can people really 
access it through the Electronic Freedom of Information Act, 
and how it is moving forward.
    I look forward to the report from GAO. They did report in 
2005 that the percentage of FOIA requests processed varied 
greatly from agency to agency, and at the same year the 
President realized this also and issued an Executive order 
which requires agencies to review their FOIA requirements and 
develop an agency-specific plan to report to the AG and 
Director of OMB. As I understand, GAO is currently reviewing 
these plans.
    I have cosponsored several bills in prior Congresses. What 
I am really concerned about is, when you finally get the FOIA 
request, sometimes a year later, half of it is redacted and you 
don't know why it is redacted. I am interested in whatever the 
standards are for an agency or anyone to determine that they 
can just block out whole periods of information. I would like 
to know is there an appeal process where the public or the 
press or other members of Government can appeal to a higher-up 
on whether or not the information that they are redacting can 
be accessible to the public. I think that is very important.
    It is important to have a FOIA process, but I had one 
constituent who came in and said, ``I did this FOIA request.'' 
He comes in with reams of paper where they are writing back and 
forth about what day they can meet, and then the information on 
the day they met was excluded. So you have reams of, ``Can we 
meet on Monday, Tuesday, February, January,'' but then the meat 
of whatever was supposed to happen was totally excluded and 
redacted. That is a ridiculous law if all you are getting is 
meeting appointments and not what is actually taking place.
    I think this is really, really very important to our 
democracy, and I have heard many complaints from members of the 
press that they can't get access to documents, they are 
stonewalled and can't get access to it, so I think it is 
important that we are having this hearing. I support it.
    I yield back the balance of my time.
    Mr. Clay. I thank the gentlelady from New York for her 
comments.
    Are there any other opening statements? The gentleman from 
New Hampshire?
    Mr. Hodes. Thank you, Mr. Chairman.
    I look forward to this hearing and I look forward to your 
leadership on this subcommittee.
    I come from New Hampshire, where citizen privacy and open 
government are hallmarks of what we care about in terms of good 
government, and we are now in the 21st century where we are 
transitioning from an industrial economy to the Information 
Age. We have also seen in recent years an administration which 
has taken Government secrecy to new levels. In that context, I 
think our examination of FOIA and what needs to be done with it 
takes on special importance. I look forward to the hearing.
    I thank you and I yield back the balance of my time.
    Mr. Clay. I thank the gentleman for his comments.
    If there are no additional opening statements, the 
subcommittee will now receive testimony from the witnesses 
before us today. Our first panel of witnesses will be: Ms. 
Linda Koontz, who is the Director of Information Management 
Issues at the Government Accountability Office, as well as Ms. 
Melanie Ann Pustay, who is Acting Director of the Office of 
Information and Privacy at the Department of Justice.
    It is the policy of the Committee on Oversight and 
Government Reform to swear in all witnesses before they 
testify.
    [Witnesses sworn.]
    Mr. Clay. Let the record show that both have answered in 
the affirmative.
    We will now ask that each witness give a brief summary of 
their testimony, and to keep the summary under 5 minutes in 
duration. Bear in mind your complete written statement will be 
included in the hearing record.
    Ms. Koontz, let's begin with you.

 STATEMENTS OF LINDA KOONTZ, DIRECTOR, INFORMATION MANAGEMENT, 
   GOVERNMENT ACCOUNTABILITY OFFICE; AND MELANIE ANN PUSTAY, 
   ACTING DIRECTOR, OFFICE OF INFORMATION AND PRIVACY, U.S. 
                     DEPARTMENT OF JUSTICE

                   STATEMENT OF LINDA KOONTZ

    Ms. Koontz. Mr. Chairman and members of the subcommittee, I 
appreciate the opportunity to participate in today's hearing on 
the Freedom of Information Act. This important statute 
establishes that Federal agencies must provide access to 
Government information so that the public can learn about 
Government operations and decisions.
    As you know, under the act agencies report annually on 
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 and to increase 
communication with requestors and the public.
    My statement today is based on work for which the 
subcommittee is a co-requestor with Representative Platts, the 
former chairman of the Subcommittee on Government Management, 
Finance, and Accountability. Our draft report on this work is 
currently out for comment with the agencies. For this study we 
focused on 25 of the largest departments and agencies to 
determine trends in FOIA processing, as reflected in agency 
annual reports, and whether agency plans address the 
improvement areas emphasized in the Executive order.
    In terms of trends, 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 requests from the year before. Including 
these numbers would obscure year-to-year Government-wide 
comparisons. In addition, I am excluding statistics from the 
Department of Agriculture because we determined that one of its 
major components could not provide reliable data.
    Also, according to annual reports, agencies provided 
records in full about 87 percent of the time, which is about 
the same as in previous years. At the same time, the number of 
pending requests at the end of the year has been steadily 
increasing, and the rate of increase has been greater every 
year since 2002.
    Agency reports also show great variations in the median 
times to process requests: less than 10 days for some agency 
components to more than 100 at others. However, because 
processing times are reported as median business days, 
generalizations are limited. Medians are good for providing 
representative numbers and are not skewed by a few extreme 
outliers, but, unlike averages, medians cannot be added 
together. This means that we cannot provide median statistics 
from several agencies to develop a number representing overall 
processing across Government, for example, or across major 
departments or across similar agencies. Being able to aggregate 
data in this way could be useful in monitoring efforts to 
improve processing and reduce the increasing backlog of 
requests.
    In our draft report we suggest that the Congress consider 
improving the usefulness of the agency annual FOIA reports by 
requiring agencies to report averages and ranges, in addition 
to median numbers. We are also recommending that Justice 
provide aggregated statistics and summaries of the annual 
reports, which Justice officials have told us that they plan to 
do.
    I would like to turn for a minute to the Executive order. 
In the order, agencies were directed to review their FOIA 
operations and develop improvement plans. The order emphasized 
four areas: reducing backlog, increasing proactive 
dissemination of records, improving communications with 
requestors on the status of their requests, and increasing 
public awareness of FOIA processing.
    Our review showed that the 25 agency plans generally 
included goals and timetables addressing the four areas. The 
plans describe numerous improvement activities, such as 
improving automation and increasing staff training, that are 
expected to contribute to achieving the goals of the order. 
Reducing backlog was a major focus, and almost all agencies set 
measurable goals and timeframes.
    Agencies also generally set milestones for the other areas 
of improvement emphasized by the order. For example, to 
increase public awareness, agencies generally plan to insure 
that their public FOIA reference guides were comprehensive and 
up to date. In our draft report, we are making recommendations 
to strengthen specific agency plans.
    In summary, Mr. Chairman, the annual FOIA reports continue 
to provide valuable information about citizens' use of this 
important tool for obtaining information about Government 
operation and decisions. Increasing requirements for annual 
reporting would further improve the public visibility of the 
Government's implementation of FOIA. In addition, the Executive 
order provided a useful impetus for agencies to review their 
FOIA operations and ensure that they are appropriately 
responsive to the public. However, it will be important for 
Justice and the agencies to continue to refine their plans and 
monitor progress and implementation.
    Mr. Chairman, that concludes my statement. I would be happy 
to answer questions at the appropriate time.
    [The prepared statement of Ms. Koontz follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. Thank you so much for that testimony, Ms. Koontz.
    Ms. Pustay, please?

                STATEMENT OF MELANIE ANN PUSTAY

    Ms. Pustay. Thank you, Mr. Chairman and members of the 
subcommittee.
    My name is Melanie Pustay, and I am the Acting Director of 
the Department's Office of Information and Privacy [OIP], and I 
am pleased to be here this afternoon to address the subject of 
the Freedom of Information Act and the status of the 
implementation of Executive Order 13392.
    The Department of Justice is the lead Federal agency for 
implementation of the FOIA, and it works through OIP to 
encourage uniform and proper compliance with the act by all 
agencies.
    Currently, the Federal agencies that are subject to the 
FOIA face a major challenge in processing several million 
requests per year at a cost exceeding $300 million annually. 
This large amount of FOIA activity represents a steady increase 
in the number of requests received by the Federal Government 
since 2001, and agencies have worked diligently to keep up with 
this activity.
    This does not mean that there is not room for improvement. 
On December 14th the President issued Executive Order 13392, 
which established a citizen-centered and result-oriented 
approach to administration of the FOIA. The Executive order 
required each agency to conduct a review of its FOIA 
operations, to develop an agency-specific plan to improve its 
administration of the FOIA, and to include in its annual FOIA 
reports for the next 2 fiscal years a description of its 
progress in meeting the goals and milestones established in the 
implementation plan.
    To ensure Government-wide compliance, the Executive order 
charged both the Department of Justice and OMB with 
coordinating efforts.
    Soon after the President issued his order, each agency 
appointed a chief FOIA officer and then established FOIA 
requestor service centers and designated FOIA public liaisons. 
As agencies worked to develop their FOIA improvement plans, the 
Department of Justice and OMB convened a conference for the 
newly designated chief FOIA officers. The conference was 
keynoted by the associate attorney general and OMB's deputy 
director for management, whose very presence and remarks 
illustrated the importance of this Presidential initiative.
    Importantly, the Department also provided extensive written 
guidance to all agencies that contained discussions of more 
than two dozen potential improvement areas and included 
supplemental guidelines on the new reporting requirements for 
agency annual FOIA reports.
    In the summer of 2006, after completion of agency plans, 
the Department held a second conference for approximately 150 
FOIA public liaisons that emphasized the important roles of 
these liaisons play. In accordance with the Executive order, 
the attorney general then reviewed the agencies' implementation 
plans, and on October 16th, in coordination with OMB, submitted 
to the President a report on agency FOIA implementation 
activities. In that report, the attorney general recommended 
holding a followup meeting of chief FOIA officers, and, 
significantly, recommended exploring the increased use of 
information technology to improve agency FOIA operations.
    That followup meeting was held on November 9th of last 
year, and included remarks by the acting associate attorney 
general, who is the Department's chief FOIA officer. At that 
conference, the Department also announced the formation of a 
technology working group that is going to explore options and 
share information regarding the use of technology.
    The most recent activity under the Executive order concerns 
the requirement that each agency submit with its annual FOIA 
report a description of the agency's progress in meeting its 
milestones under the plan. The Department of Justice, as the 
lead implementation agency, completed its annual FOIA report on 
January 19th, 2 weeks in advance of the February deadline, and 
we posted it on our Web site in order for it to serve as a 
model for all other agencies.
    To date, virtually all agencies have submitted their FOIA 
annual reports to our Department for review. After submission, 
we work with the agencies to ensure that their reports meet the 
technical requirements of the FOIA and the Executive order, and 
then, once that process is complete, we post the report on the 
Web site.
    The next major step under the Executive order will be a 
review by the attorney general of the agencies' progress in 
implementing their FOIA improvement plans. The attorney general 
will report on that progress to the president on June 1, 2007, 
and a second such review will be made June 1, 2008.
    In conclusion, you can be assured that the Department of 
Justice looks forward to working with the subcommittee on this 
matter. I am pleased to answer any questions that you or your 
staff might have.
    Thank you.
    [The prepared statement of Ms. Pustay follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. Thank you very much, Ms. Pustay, for your 
testimony.
    We will now move to the question period, and we will 
proceed under the 5-minute rule.
    Now our ranking member, Mr. Turner of Ohio, has joined us, 
so I will let him proceed with his opening statement of up to 5 
minutes, and then questioning of up to 5 minutes.
    Mr. Turner.
    Mr. Turner. Thank you, Mr. Chairman. I want to thank you 
for holding this hearing, and I would like to congratulate you 
on your first hearing as chairman of this subcommittee. I look 
forward to working with you over the months to come, and I 
appreciate your hospitality as we have had discussions 
concerning the opportunities that this committee presents, and 
I appreciate your openness and your partnership.
    The FOIA statute has become a popular tool of inquiry for 
the press, researchers, businesses, prisoners, attorneys, 
activists, and foreign interests, but it is also a tool for the 
individual. Given the public interest at stake, I think 
improving the procedural aspects of the act is certainly a 
worthy goal. Nevertheless, I hope we can continue to balance 
the need for open government with the need to protect 
information vital to national security and homeland security, 
and I hope we all keep in mind the importance of individual 
privacy throughout this discussion.
    Today I look forward to hearing the testimony and the ideas 
and the thoughts of how we might improve this act. It is 
important that we have a review of the FOIA processing trends, 
and from the public interest groups, all of whom are passionate 
advocates for unfettered access to Government records.
    I thank the chairman, and certainly I thank this first 
panel for their thoughts and comments.
    Ms. Koontz, I appreciate the work of GAO and the extensive 
review that you have done. Could you tell us what department or 
agency handles FOIA the most effectively?
    Ms. Koontz. That is a very difficult question to start out 
with.
    Mr. Turner. If we are looking for a model, who gets the 
best in class that we might look at for an example?
    Ms. Koontz. I think that would be very, very difficult to 
answer, and I think part of the reason that it is is because 
there is so much difference between different agencies, what 
they have to deal with. It would be very easy for me to say, 
well, it is the National Science Foundation, but I know the 
National Science Foundation has 300 requests a year, and I know 
that they are of a particular type, so they don't maybe have 
the challenges that maybe other agencies, such as maybe State 
Department or CIA, might have. So I think that coming up with 
the metrics that would allow me as an auditor to answer that 
question, I don't think I have them.
    Mr. Turner. Well, what are some of the things that you do 
see in those that you admire that would be best practices that 
you would like to highlight?
    Ms. Koontz. I don't know that we have actually recently 
looked at agency processing. I do know, from looking at the 
overall agency trends, though, a lot of it seems to be driven 
by the sort of requests that agencies get. If you look at a 
certain class of agencies, if you look at VA, if you look at 
SSA, if you look at HHS, if you look at agencies that are very 
sort of have a customer base and they interact with the public 
quite a bit, you see people coming to them very routinely for 
specific kinds of information, and you see that information 
granted in full and turned around fairly quickly.
    Then you see other situations that are much more 
challenging, in terms of the kinds of information that people 
are asking for, where it may involve sensitive information, it 
may involve privacy information, may involve review and 
redaction, and that makes for a much more complicated 
landscape, and it is very hard to compare the two.
    Mr. Turner. Looking for the Department of Justice's 
perspective in the Executive order, how has its implementation 
occurred, and has it had time really to take effect as we look 
at what amendments or processes that we might want to change in 
the act.
    Ms. Pustay. Well, it is important to remember that at this 
point the agencies have only had 6 months of implementation 
activity. Their review and plans were completed in June of last 
year, and what they are just now reporting to us is their 
efforts basically from June to December, so it is only 6 months 
time. But I have been very, very encouraged and very pleased 
with what I have seen so far in the annual reports, the reports 
of the progress that the agencies have made. I think it is 
quite remarkable that many agencies have reduced their 
backlogs, have set up new training programs, have set up 
computerized system to track requests. In 6 months time, there 
has been a lot of very, very positive activity on the part of 
agencies.
    Mr. Turner. Many times when we think of FOIA we think of 
the press and investigative reporting, but we can't lose sight 
of the fact that so many of these requests are first person 
requests. Can you give us an idea as to what percentage or how 
the first person requests rank in comparison to the other 
requests that are processed?
    Ms. Pustay. I think first party requests where people ask 
for their own records are certainly the most common type of 
request across agencies, but, as Ms. Koontz said, certain types 
of agencies are really conducive to that kind of request coming 
in, like VA and Social Security Administration. You don't get 
as many with Department of Homeland Security, for example. But 
law enforcement agencies such as the Department of Justice, of 
course the agency I am most familiar with, we have the FBI as a 
component that is a quite popular component for prisoner 
requestors who are interested in finding out what their FBI 
file contains on them. Certainly, with many, many people are 
curious to know what kind of records any agency of the Federal 
Government has on them, so it is a common request.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Clay. Thank you, Mr. Turner, for your comments and your 
questions.
    Ms. Koontz, since the President issued Executive Order 
13392 in December 2005, have there been any measurable 
improvements in agency FOIA operations? Has the addition of 
agency FOIA public liaisons improved agency response times or 
reduced the number of disputed requests?
    Ms. Koontz. I think overall I would say that we were 
impressed with the quality of the improvement plans. I think 
agencies took them seriously and they included the areas that 
were emphasized in the Executive order, but I think that it is 
too soon for us to say whether or not there has been 
improvements.
    Our testimony today is based on the data that was reported 
in February 2006, and the new data is not in for us to look at, 
but when that occurs and when the new reports come in, I think 
we will then have a basis for determining what improvements 
have been made and what new trends we might be seeing.
    Mr. Clay. And how smoothly do you think the implementation 
went, as far as setting up the different offices in those 
agencies?
    Ms. Koontz. I can just say that we know in each case that 
the offices were set up. I don't think we are in a position yet 
to say how effectively those offices are operating.
    Mr. Clay. Thank you. In your written testimony you note 
that GAO cannot make many generalizations about agency response 
under FOIA because of the limited information----
    Ms. Koontz. Yes.
    Mr. Clay [continuing]. That they are required to report. 
How has the fact that agencies are only required to report the 
median number of days to respond impacted your analysis? And 
can you suggest ways to improve agency FOIA reporting 
requirements to ensure proper congressional oversight?
    Ms. Koontz. When agencies report medians, as required in 
the law--and they often report median dates on a component-by-
component basis--that provides, shall we say, one perspective 
on agency performance, but the limitation there is that, 
because it is a median, we can't add them up. We can't give you 
a number of how the Government is doing as a whole and what are 
the trends from year to year.
    Our suggestion has been that agencies should also be 
required, and we suggest that the Congress consider requiring 
them to also report statistics such as the average and the 
range, which would provide more of a suite of statistics that 
would help us make sense of the information that agencies are 
reporting.
    I know that median was probably selected because it is not 
subject to skewing by outliers, but it presents other 
difficulties in terms of being able to get a Government-wide 
picture of our performance.
    Mr. Clay. Thank you for your response.
    Ms. Pustay, every 2 years the Department of Justice 
publishes a guide to FOIA. I understand that the latest edition 
was due to be printed in November of last year, but 3 months 
later is still not available. This report is expected to 
include new information about the Executive order. What has 
happened to that report?
    Ms. Pustay. The actual original date was for December of 
last year, and I think the best answer is that it was an overly 
optimistic projected date for the guide to be available. It is 
still being reviewed internally within the Department of 
Justice.
    You can imagine that it is a topic of great interest to me, 
and I am the first person that will want to get it out when the 
review is finished.
    Mr. Clay. Well, you know, even if it was due in December, 
we are still 2 months behind.
    Ms. Pustay. Yes.
    Mr. Clay. I think it is important for the Justice 
Department to also understand that we need to have transparency 
in Government. We need to bring everything to the light of day, 
as much as we can, to the public. So would you go back and tell 
your superiors that they would try to get this report out in 
due haste.
    Ms. Pustay. I don't need to do that because I have been 
working with people within the Department of Justice to get the 
guide reviewed internally. You have to keep in mind that it has 
now grown to 1,000 pages, so it is quite a daunting task for 
anyone to try to review it, and so I understand why it is 
taking time. But obviously my efforts since I have been Acting 
Director, one of the first things I did was make a call to find 
out the status of the guide, so it is something I am actively 
working on. I can assure you of that.
    Mr. Clay. Any estimation on its release?
    Ms. Pustay. I feel like, after what happened with the first 
estimated time, that is the last thing I should do is give a 
new estimate.
    Mr. Clay. We are waiting patiently here to see the report, 
too.
    Ms. Pustay. I know. I know lots of people are looking 
forward to our guide coming out. As I said, no one is looking 
forward to it coming out more than me.
    Mr. Clay. Thank you very much for your response.
    Mr. Hodes.
    Mr. Hodes. Thank you, Mr. Chairman.
    Ms. Pustay, a couple of questions for you. In October 2001 
the Ashcroft memorandum was issued, which essentially 
discouraged agencies from releasing documents under FOIA if 
technical grounds could be found to justify the withholding, 
and it directed that the DOJ would defend agency decisions to 
assert FOIA exemptions unless they lacked a sound legal basis. 
And, similarly, in 2002 the then White House chief of staff 
Andrew Card issued a memorandum urging agencies to safeguard 
information deemed sensitive but unclassified.
    How do those two memorandums work in conjunction with the 
December 2005, Executive order from President Bush that your 
agency is in charge of?
    Ms. Pustay. To go from the back forward, on the comment 
about sensitive but unclassified information, the key point 
there in the context of the Freedom of Information Act is that 
a marking on a document is simply a signal to people, to 
anybody who is processing a request, that document has 
sensitivity. It is a marking to enable people within an agency 
to appropriately handle the document within the agency. It is 
absolutely not a basis to withhold information.
    Our office has consistently advised agencies, since the 
Card memo came out and before that, that markings on documents 
are not independent grounds for withholding. You always have to 
have one of the nine FOIA exemptions apply before a document 
can be withheld. So the marking is not dispositive, when you 
are talking about release or not under the FOIA.
    Now, on the Ashcroft memorandum----
    Mr. Hodes. Thank you.
    Ms. Pustay [continuing]. The key point of the Ashcroft 
memorandum was that it advised agencies to take into account 
that of course there is interest, there are interests on the 
part of the public in learning about the Government, and in 
transparency that is the whole purpose of the Freedom of 
Information Act. But at the same time, when Congress passed the 
FOIA, Congress put in nine exemptions to the FOIA that protect 
very important interests. Personal privacy has been mentioned 
here already. Obviously, national security, law enforcement 
information, business information--the Government records are 
filled with lots and lots of information that implicate all 
those other important interests. What the Ashcroft memorandum 
does is tell agencies, whenever they are making a decision to 
disclose or not under the FOIA, to keep in mind the important 
interests that are protected by the exemptions. So all of that 
is a very logical and reasonable way to look at administration 
of the FOIA.
    Finally, you were asking how that worked in the Executive 
order. Actually, the Executive order doesn't address the 
substantive exemptions. The Executive order is addressed 
completely to the processes by which FOIA is administered, and 
it is designed to help agencies set up systems where requestors 
can learn about their requests more readily, have their 
requests processed more quickly. It doesn't address in any way 
the substance of what is released or withheld.
    Mr. Hodes. Thank you. Is it your testimony that, as a 
result of the Card memorandum and the Ashcroft memorandum, DOJ 
has not narrowed down in any way the way it tells its agencies 
to respond in FOIA requests or changed the criteria in any way?
    Ms. Pustay. It has not changed. It is a fact that it has 
not changed the legal requirements for withholding information 
under the FOIA, because those are governed by the exemptions 
that are in the statute.
    Mr. Hodes. What has changed?
    Ms. Pustay. The change from the Ashcroft memorandum, which 
it is really the only one that really has made a change, is 
that it is a different tone. I think that is the way it has 
been described in the past.
    Typically, when attorney generals come into office--this 
has happened back starting in the 1980's--attorney generals 
will typically issue a memorandum kind of giving their 
perspective or their direction in terms of how the Freedom of 
Information Act should be implemented. Attorney General William 
Bell had a FOIA memorandum and Janet Reno had one and John 
Ashcroft had one. The change that there is with the Ashcroft 
memorandum is more the tone, because the tone emphasizes that 
there are important interests to be protected by the FOIA's 
exemptions, and that is the difference. I think it is making 
agencies aware of the fact that there are important public 
interests in protecting information.
    Mr. Hodes. Let me just followup briefly, if I may.
    Mr. Clay. Sure.
    Mr. Hodes. Would you agree with me that, prior to the 
Ashcroft memorandum, previous policies stated that agencies 
should release requested information absent some finding of 
harm?
    Ms. Pustay. Yes. Under Janet Reno, her memorandum on the 
FOIA actually affirmatively encouraged agencies to make what we 
called discretionary releases of information. That is 
information that fits within an exemption but which an agency 
is always free legally to say I am looking at a document, it 
fits within an exemption, but using my discretion I am going to 
release that information. Agencies are always free to do that 
because the FOIA exemptions are not mandatory.
    Now, under Attorney General Reno's memorandum, she actively 
encouraged agencies to make discretionary disclosures of 
information. Now, the Ashcroft memorandum does not actively 
encourage discretionary disclosure. That is true. But it still 
makes reference to the fact that when agencies consider making 
a discretionary disclosure they should keep in mind the 
competing interests underlying the exemptions.
    Mr. Hodes. If I may, Mr. Chairman, I have one last 
question.
    Mr. Clay. Go ahead, Mr. Hodes.
    Mr. Hodes. Am I correct that as of today you are still 
operating under the strictures of the Ashcroft memorandum?
    Ms. Pustay. Yes, that is correct.
    Mr. Hodes. Thank you. Thank you, Mr. Chairman.
    Mr. Clay. Thank you so much for that line of questioning, 
Mr. Hodes.
    Going to our second round of questioning, Mr. Turner, did 
you have a second round for this panel?
    Mr. Turner. Yes, Mr. Chairman.
    Mr. Clay. Please proceed.
    Mr. Turner. I am looking here at the Janet Reno memo, 
itself, and it is going over the prior discussions in the prior 
administrations concerning FOIA, and it says, ``The Department 
will no longer defend an agency's withholding of information 
merely because there is a substantial legal basis for doing 
so,'' and being a lawyer that always concerns me, because if 
there is a substantial legal basis you would think that would 
be something you would want to do. ``But rather, in determining 
whether or not to defend a nondisclosure decision, we will 
apply a presumption of disclosure.'' But obviously you have to 
have some guidelines on a presumption of disclosure, because 
otherwise you would just be giving everything away. And we all 
acknowledge that there are some things, both for our national 
security, which would be our collective interest----
    Ms. Pustay. Right.
    Mr. Turner [continuing]. And our personal privacy, which is 
our individual interests----
    Ms. Pustay. Right.
    Mr. Turner [continuing]. That things should not be merely 
just posted in the town square and available to anyone to 
peruse.
    Ms. Pustay. Exactly.
    Mr. Turner. So, in order to switch from a substantial legal 
basis for doing so, which I always thought meant someone had 
done a legal analysis and therefore there was a conclusion that 
the information should be withheld, to go to a presumption of 
disclosure there has to be some standard you apply, and looking 
at it, it says, ``Yet, the act's exemptions are designed to 
guard against harm to Government--'' that is a good thing--
``and private interests.'' That is a good thing. ``I firmly 
believe that these exemptions are best applied with specific 
reference to such harm, and only after consideration of the 
reasonably expected consequences of disclosure.'' Well, in the 
act, itself, there are a series of exceptions where we have 
collectively, both the prior administrations in signing the act 
and amendments, and the Congress in enacting them, have 
established categories where we have assumed that there would 
be consequence of disclosure. That is why we accepted them.
    Ms. Pustay. That is right.
    Mr. Turner. We said don't put it out in these areas because 
we have had hearings, we have deliberated, and we believe these 
categories could have harm to either the Government and/or to 
individual interests.
    Ms. Pustay. Right.
    Mr. Turner. So if you are not going to just look at those 
categories of exceptions and apply a standard of legal basis, 
what would your test be for reasonably expected consequences?
    Ms. Pustay. This is all back under how we did things under 
the Janet Reno memo.
    Mr. Turner. Good.
    Ms. Pustay. As a practical matter, how that applied, at the 
beginning of your question you mentioned national security 
interests and personal interests, which are obviously very 
strong interests. Those are actually two areas where agencies 
are not, in fact, legally free to make a discretionary release. 
This whole discussion we are having here is about making 
discretionary releases, so releases despite the fact that an 
exemption applies. But in the area of national security, 
personal privacy, in certain situations for business 
proprietary information we have other statutes that provide 
protection for the information. We have the Privacy Act. We 
obviously have statutes that prohibit disclosure of classified 
information.
    So an agency, because of the operation of other laws, is 
not free to just release information about individuals or 
release information that would violate national security. So 
what that meant as a practical matter was that the effect of 
the Reno discretionary disclosure policy, it applied most 
directly to internal agency documents, documents that were 
subject to exemption two, which protects personnel or 
administrative matters, and exemption five, which protects 
privileged matters within the agency. Those were the two areas 
where there was room under the Reno directive to actually look 
at a document and say OK, I am looking at this, I see this as 
an internal rule and procedure. It technically could fit 
exemption two, but when I look at it, I really don't think 
there is any harm in disclosure, and therefore I will release 
it. That is what the Reno position or her policy was designed 
to promote.
    Mr. Turner. After September 11th in the categories you have 
described of discretionary disclosure, wouldn't we have wanted 
a more narrow view of what reasonably expected consequences 
might be, because of the unknown factor that we were then 
wading into?
    Ms. Pustay. Absolutely. Certainly all of us in the FOIA 
community looked at information in a new light after 9/11, and 
there certainly have been situations where agencies had to 
start, for the first time, thinking about the impact of 
disclosure on a potential terrorist, and we would be 
irresponsible if we didn't think that way. So we have had 
certainly a renewed interest in typically exemption seven. The 
law enforcement exemptions have been used in a new way because 
of new threats, new consequences from disclosure that were 
simply unforeseen before 9/11.
    Mr. Turner. Thank you. Thank you, Mr. Chairman.
    Mr. Clay. Thank you, Mr. Turner.
    Ms. Pustay, FOIA requestors have argued that requests 
involving cooperation among agencies are some of the most 
problematic to resolve and often lead to the longest delays.
    Ms. Pustay. Yes.
    Mr. Clay. Is DOJ taking any steps to improve interagency 
cooperation on FOIA requests?
    Ms. Pustay. I mean, it is absolutely true, yet I don't have 
an easy answer to that. Let me just explain that when you have 
records, especially if you have sensitive records that 
implicate national security concerns, it is important, and I 
would certainly always recommend to agencies that they 
coordinate and consult with other interested agencies. Lots of 
times records that are responsive to a FOIA request are 
gathered and collected at the agency site that received the 
FOIA request, but if they implicate the interests of other 
agencies they have to go to the other agency to get that other 
agency's views on disclosure of its information that appears in 
the first agency's files. It is just the nature of the fact 
that records don't exist in nice, discrete packages.
    But obviously that involves time. I mean, it is absolutely 
correct, the more you have to consult with other agencies the 
more time.
    Mr. Clay. Tell me, though, is DOJ doing anything to foster 
a cooperation among----
    Ms. Pustay. Yes.
    Mr. Clay [continuing]. The different agencies who may hold 
a bit of information on a particular case.
    Ms. Pustay. Absolutely, because it is a necessary 
requirement of FOIA processing, but obviously it is a very 
important area to have improvement in. Within the Department of 
Justice, as part of the Executive order implementation and part 
of our Executive order duties, this is an area that we have 
focused on. Increasing communication between agencies, coming 
up with forms to exchange between agencies, within the Justice 
Department we have even been able to set up protocols to get 
information more quickly or to review information offsite. 
There are different things that agencies can to do help speed 
the process up, and we definitely are working on those, and it 
part of the EO implementation.
    Mr. Clay. Along those same lines, resources at agencies 
seem to be a major barrier to maintaining and training FOIA 
personnel. Has DOJ looked to improve FOIA training 
opportunities for FOIA officers?
    Ms. Pustay. We do lots of training within the Justice 
Department for across the agencies. I have to say our courses 
are usually standing room only, sold out courses, so we do have 
a great demand for training. But just about nearly every month 
we have formal training programs, so it is something that we 
are very actively involved in. And we also do individualized 
agency training sessions. When a particular agency would like 
one of us to come onsite, we go and train there. So it is 
absolutely a key part of what we do.
    Mr. Clay. OK. Thank you for your response. Ms. Koontz, 
there seems to be an inverse relationship between the number of 
FOIA requests made and the number of cases backlogged across 
the Government. Why is this?
    Ms. Koontz. I think you are referring to some of the 
phenomenon that we talked about earlier is that in some 
agencies they receive many, many FOIA requests, and these are, 
in many cases, also privacy requests. They are requests for 
people for their own record, or they are an authorization for a 
third party to obtain their record. These in many cases are 
easily fulfilled, and they are not the sort of kind of--you 
know, in some cases I think the median days is one on some of 
these requests. These are not the kind of cases that lead to a 
backlog.
    Mr. Clay. So the backlogs come when there are restrictions 
on FOIA and exemptions on what kind of information that you can 
release?
    Ms. Koontz. We haven't done a study looking in a detailed 
way at individual FOIA requests, but what the agencies tell us 
is that oftentimes we are talking about cases that may involve 
tens of thousands of pages of responsive records. It may 
involve going to other agencies through the referrals and 
through consultations. You know, it may involve the difficulty 
just of having to search agency wide for responsive records, 
and in some cases agencies, frankly, do not have the kind of 
records management systems that facilitate the quick 
identification of responsive records. There is a variety of 
reasons that agencies have given us for why some of these take 
longer.
    Mr. Clay. Thank you so much for your response.
    Mr. Hodes, did you want to participate in a second round of 
questions?
    Mr. Hodes. I would. Thank you, Mr. Chairman.
    Mr. Clay. Please proceed.
    Mr. Hodes. Ms. Pustay, I understand from your testimony 
that DOJ submitted its report on January 19th, which was 2 
weeks in advance of the deadline.
    Ms. Pustay. Yes. I am very proud of that.
    Mr. Hodes. I understand that. And I note that the Justice 
Department's report indicates that it stopped working on and 
reporting on its Executive order compliance on January 9th. You 
had 3 more weeks before the cutoff. Why did you choose to stop 
then?
    Ms. Pustay. Obviously, we didn't stop our work on our 
implementation activities. When we took what I felt was a very 
positive step to get our report up early, we knew that we were 
cutting ourselves short in terms of time for finishing our 
implementation. But to my mind the value of having it up and 
posted, not only finished, but posted on the internet as a 
model was just so important that I wanted to do it, and we have 
been very pleased with the fact that I think it really did have 
a very good impact on other agencies.
    Mr. Hodes. I was surprised to see in the DOJ's report of 
its own compliance that there were more than two dozen 
deficiencies, including eight in the FBI, alone. Why were there 
so many deficiencies in the DOJ's report? And why didn't you 
take the time after January 9th to do something about DOJ's own 
deficiencies?
    Ms. Pustay. Well, first of all, the DOJ has a tremendous--I 
am very proud of DOJ's annual report. We have, I think, 
tremendous successes that are delineated in our annual report 
across a wide range of components. There are deficiencies with 
some of our components, and I think that is just to be 
expected. The FBI, in particular, for instance, had a huge move 
of all their FOIA operation, which is hundreds of people. They 
moved to Winchester, VA, I think. The logistics of moving that 
whole shop had a huge ripple effect on their ability to carry 
out some of the goals that they had set for themselves. That 
has absolutely nothing to do with the fact that we reported out 
their successes and their deficiencies early. They would not 
have been able to cure the effect of moving to Winchester in 2 
weeks. Really, one does not have any relation to the other.
    Mr. Hodes. I want to return briefly to the question of the 
impact of the Ashcroft memorandum.
    Ms. Pustay. OK.
    Mr. Hodes. I am looking at a letter dated February 8, 2007, 
from James Kovacks, attorney in charge of the civil division.
    Ms. Pustay. Civil division.
    Mr. Hodes. He is replying to a fellow named Mr. Hammet, who 
on January 30, 2007, under FOIA requested records of the civil 
division relating to the 2006 revision of the DOJ guide to the 
Freedom of Information Act.
    Ms. Pustay. OK.
    Mr. Hodes. And he sought expedited processing for that 
request. He wanted a copy of the guide. This fellow, Mr. 
Kovacks, wrote back and said that there was no urgency to 
inform the public about an actual or alleged Federal Government 
activity, and the decision was based on the fact that there 
have been periodic revisions to the guide and there is no 
evidence that the public is concerned in any way about the 2006 
revisions. So he was denying Mr. Hammet access to this guide; 
is that correct?
    Ms. Pustay. I don't know if it is correct. I haven't seen 
the letter.
    Mr. Hodes. I will be happy to submit that to you.
    Ms. Pustay. That is fine.
    Mr. Hodes. My question is: does this have anything to do 
with the Ashcroft memorandum? Is this the kind of thing that 
the Ashcroft memorandum has produced in terms of the way DOJ is 
responding to FOIA requests?
    Ms. Pustay. No. Again, it is apples and oranges. What you 
are reading to me there is a request for expedited processing 
of a request, and a denial of that request for expedited 
processing. Expedited processing is a whole separate part of 
the Freedom of Information Act that is not at all addressed in 
the Ashcroft memorandum, and expedited processing is--in the 
FOIA, itself, there are provisions for certain requestors and 
certain circumstances to jump to the head of the line to get 
their requests processed earlier than anyone else. But in order 
to go to the head of the line you have to meet strict 
requirements, because obviously anybody that gets bumped to the 
front of the line disadvantages all the other requestors who 
are patiently waiting.
    So what you are reading to me there is actually a request 
for expedited processing and a decision by the civil division 
that the standard for expedited processing wasn't met. The 
Ashcroft memorandum has absolutely nothing to do with that.
    Mr. Hodes. Thank you. Mr. Chairman, I would submit this for 
the record.
    Mr. Clay. Without objection.
    Mr. Hodes. Thank you, Mr. Chairman.
    I yield back.
    Mr. Clay. Thank you.
    Let me also ask, are there any further questions for this 
panel?
    Mr. Turner. Mr. Chairman, I would just like to state how 
impressed I am with both of them and their answers and their 
responses, because clearly we have all agreed in our questions 
and in our comments about the need for protection of 
governmental interests and private interests, but also of the 
need for release of this information that should be properly 
released. Clearly, both of them are giving us guidance and 
information and are committed to the types of policy that 
certainly everyone on this committee has been espousing.
    Thank you.
    Mr. Clay. Thank you.
    If either witness or both have a closing comment to make, 
feel free.
    [No response.]
    Mr. Clay. If not, that will conclude the testimony for 
panel one. I thank you Ms. Koontz and thank you Ms. Pustay for 
your testimony. You may be excused.
    I would like to now invite our second panel of witnesses to 
come forward, please.
    Our second panel will consist of three witnesses.
    Our first witness is Mr. Clark Hoyt, who serves as a 
consultant to McClatchy Newspapers. For the prior 38 years he 
was reporter, editor, and executive with Knight Ridder, the 
Nation's second-largest newspaper company, until its 
acquisition by McClatchy. In 1973 he shared the Pulitzer Prize 
for national reporting with Robert S. Boy for their coverage of 
Democratic Vice Presidential Nominee Thomas Eagleton, another 
Missourian.
    Our second witness will be Ms. Caroline Fredrickson, who 
serves as the director of the Washington Legislative Office. 
Caroline Fredrickson is the director of the ACLU Washington 
Legislative Office. As director, Ms. Fredrickson leads all 
Federal lobbying for the national ACLU, the Nation's oldest and 
largest civil liberties organization. She is also the 
organization's top lobbyist and supervises the 50-person 
Washington legislative team in promoting ACLU priorities in 
Congress, the White House, and Federal agencies.
    Our third witness is Meredith Fuchs, who serves as the 
general counsel to the National Security Archive at George 
Washington University. There she oversees Freedom of 
Information Act and anti-secrecy litigation, advocates open 
government, and frequently lectures on access to Government 
information. She is the author of ``Judging Secrets: the Role 
Courts Should Play in Preventing Unnecessary Secrecy and 
Greasing the Wheels of Justice, Independent Experts of National 
Security Cases.''
    It is the policy of the Committee on Oversight and 
Government Reform to swear in all witnesses before they 
testify.
    [Witnesses sworn.]
    Mr. Clay. Let the record show that they have answered in 
the affirmative.
    As with panel one, I asked that each witness now give a 
brief summary of their testimony and to keep the summary under 
5 minutes in duration. Bear in mind your complete written 
statement will be included in the hearing record.
    Mr. Hoyt, let's begin with you.

 STATEMENTS OF CLARK HOYT, MCCLATCHY NEWSPAPERS, ON BEHALF OF 
 THE SUNSHINE IN GOVERNMENT INITIATIVE; CAROLINE FREDRICKSON, 
    DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL 
LIBERTIES UNION; AND MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL 
        SECURITY ARCHIVE AT GEORGE WASHINGTON UNIVERSITY

                    STATEMENT OF CLARK HOYT

    Mr. Hoyt. Mr. Chairman, Ranking Member Turner, and members 
of the subcommittee, I am honored to appear before you today to 
speak in support of efforts to strengthen the Federal Freedom 
of Information Act. I am testifying on behalf of the Sunshine 
in Government Initiative, a coalition of 10 media groups 
committed to promoting policies that ensure the Government is 
accessible, accountable, and open.
    I believe the Freedom of Information Act is one of the most 
important tools available to journalists and citizens, alike, 
to monitor the performance of our Government, but it has flaws 
that I hope this Congress in its wisdom will address. Because 
of FOIA, Chris Adams of McClatchy Newspapers was able to report 
this past weekend that the Department of Veterans Affairs is 
ill-equipped to handle the wave of returning Iraq war veterans 
suffering from post traumatic stress syndrome.
    I would like to tell you about an earlier 2005 series of 
stories on the VA by Knight Ridder written by Chris and Allison 
Young. I think you will see that their experience gathering 
public records provides strong evidence that FOIA needs to be 
strengthened. Early in 2004 Chris and Allison undertook a 
comprehensive inquiry into how the VA determines who gets 
disability benefits and who doesn't. In February, Chris asked 
the VA what kinds of relevant data bases the Department 
maintained. The VA stonewalled. It wouldn't give him the record 
lay out for different data bases. In March a public affairs 
officer told Chris that the Department didn't want to tell him 
how it maintained records because officials feared it was 
``Leading to a big FOIA.''
    Although FOIA explicitly says that individuals requesting 
public documents don't have to say why they want them, the 
public affairs officer probed to find out what the stories 
would say. Officials at the Veterans Benefits Administration 
``Certainly would like to know why the information is needed,'' 
he said in an e-mail.
    In March Chris filed our first FOIA request asking, in 
effect, for the records of what records the VBA maintained. 
There was no response. We appealed. No response.
    At one point Chris was invited to view a version of the 
record layout, but as he was leaving VA officials demanded his 
notes so other officials could clear them. I believe the demand 
was not supported in any way by law, but Chris complied. The 
notes were faxed to him the next day. Eventually, Chris learned 
on his own what records he needed for the project, and on April 
15th he filed a FOIA request. Here, from Chris' notes, is what 
happened next. Please keep in mind the 20-working-day statutory 
deadline for an agency response to a FOIA request.
    May 6, a VBA FOIA officer told Chris the request was 
``Being worked.'' On June 4th, June 16th, July 19th, and August 
6th VA officials said the request, in the same words, ``Were 
still being worked.'' August 8th, ``They are still working on 
them. It is being worked, not like it is sitting there.'' 
September 3rd, a VA official admitted they did not get to it 4 
months ago. Part of it was the queue, part of it was the whole 
general counsel, and part of it was miscommunication.
    At one point the VA demanded from us $41,000 to copy the 
records of 11,000 service officers who help veterans file their 
claims. We had asked for two files.
    Finally, after numerous unanswered FOIA requests and six 
administrative appeals, we filed a lawsuit in November. In 
December the long-sought records began flowing. By February 
2005 we had most of what we had requested. In March the stories 
ran. The stories documented how veterans nationwide are being 
short-changed by a benefit system prone to long delays, 
wrongful denials, and inconsistent rulings. In addition to 
seven journalism awards and the satisfaction of knowing we did 
our duty by persevering in the quest to examine the performance 
of a Federal agency that affects millions of Americans, Knight 
Ridder got legal bills totaling more than $100,000.
    Because the VA surrendered the data bases and other records 
before our suit went to trial, we were prevented from 
recovering legal fees because of the way the appellate court 
that governs Washington, DC, interprets the Supreme Court's 
decision in Buckhannon Board and Care Home, Inc. v. West 
Virginia Department of Health and Human Resources.
    How do I believe FOIA should be strengthened? Based on our 
experience, I would like to suggest four broad changes.
    First, create a FOIA ombudsman within Federal agencies, a 
champion for FOIA training and compliance, a place where 
individuals seeking to exercise their rights under FOIA can go 
for help, short of filing a lawsuit.
    Second, eliminate what Senator John Cornyn has correctly 
called ``the Buckhannon tax.'' Make it clear that plaintiffs 
forced to sue to get public records are entitled to get legal 
fees, even though the defendant agency throws in the towel 
before a court decision.
    Third, make FOIA's deadlines meaningful. If the law says a 
request must have a response within 20 working days, put teeth 
in it with real sanctions for agencies that don't comply.
    Fourth, the law would work better if every FOIA request was 
assigned a tracking number. Any individual should be able to 
check at any time on the status of a request and get an 
accurate account of the progress. Combined with more meaningful 
reporting of each agency's overall FOIA performance, this would 
help achieve greater accountability.
    Mr. Chairman, in closing I request that an in-depth 
analysis of FOIA implementation prepared by the Coalition of 
Journalists for Open Government titled ``The Waiting Game: FOIA 
Performance Hits New Lows,'' be entered into the record of this 
hearing.
    Thank you.
    Mr. Clay. Without objection, so ordered.
    [The prepared statement of Mr. Hoyt follows:]

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    Mr. Clay. Thank you for your testimony.
    Ms. Fredrickson, please proceed.

               STATEMENT OF CAROLINE FREDRICKSON

    Ms. Fredrickson. Good afternoon, Subcommittee Chairman 
Clay, Ranking Member Turner, and members of the subcommittee. 
Thank you for the opportunity to testify today on behalf of the 
American Civil Liberties Union, its 560,000 members, our 
activists, and 53 affiliates nationwide about an issue of 
critical importance, the Freedom of Information Act.
    FOIA gives ordinary people the power to hold the Governors 
accountable to the governed. We like to think of FOIA as 
democracy's x-ray because it shows us the inner workings of 
Government so we can identify the waste, fraud, abuse, and 
corruption that weaken our Nation. But that x-ray machine has 
grown old and needs a tune-up. Backlogs clog the system and 
cause expensive, unnecessary delays.
    Under the Open America Doctrine, agencies can use their 
backlog as an excuse for failing to meet statutory deadlines 
for new FOIA requests; however, the real problem is the current 
administration is intentionally and improperly shielding itself 
from view, using national security as a barrier to prevent 
Americans from seeing what is happening inside our Government.
    FOIA is the best tool that Congress has created to expose 
Government abuse, and through exposure to help end those 
abuses. ACLU litigators are now using that power with great 
effect to bring to light illegal and improper methods pursued 
by the Bush administration in its global war on terror.
    The ACLU recognizes that increased oversight is even more 
important when people are afraid that national security is 
being threatened. For example, ACLU's FOIA requests have 
revealed Pentagon and FBI spying programs targeting peaceful 
protest groups in the United States such as the American 
Friends Service Committee, Veterans for Peace, United for Peace 
and Justice, Greenpeace, and the Catholic Workers Group. This 
is wasteful and dangerous. Every hour the FBI spends 
infiltrating a Quaker peace group is one less hour it can spend 
finding the next Mohammed Atta.
    Another ACLU FOIA request demanded information about 
detainees held by the United States overseas. It exposed 
evidence of interrogation techniques in U.S. detention 
facilities in Guantanamo Bay, Cuba, Afghanistan, and Iraq that 
are widely regarded as torture under international law.
    Once it came to light through our FOIA requests and other 
sources, this abuse triggered a national soul searching about 
abusive interrogation techniques used in the fight against 
terrorism.
    These two examples demonstrate how the public disclosure of 
Government misconduct through FOIA can serve to curb such 
improper Government activities. The activities waste precious 
resources and do irreparable harm to our core values and the 
image of the U.S. Government, particularly in the international 
community, where cooperation against trans-national terrorism 
is an essential component of our national security strategy.
    I would like to highlight a few of the problems the ACLU 
has seen in its FOIA litigation. In torture litigation the ACLU 
filed the FOIA request for information on detainees in October 
2003, 6 months before the Abu Ghraib photos were leaked to the 
media, but the agencies released virtually nothing until the 
court required them to begin processing the documents in August 
2004.
    Who knows what abuse might have been prevented had the 
Government been more forthcoming when the FOIA request was 
first filed? We are still pressing for the release of the 
documents, themselves, which the CIA continues to withhold.
    NSA warrantless wiretapping--the Government made 
astonishing secrecy claims regarding NSA warrantless 
wiretapping. It took the extraordinary position that even the 
number of documents and the total number of pages at issue was 
classified. The Government even argued that document review by 
a special magistrate would violate the separation of powers.
    U.S.A. Patriot Act--the Justice Department at first refused 
to release statistics to the ACLU regarding the FBI's use of 
section 215 authorities and national security letters, but 
those statistics were released by the administration months 
alter in an attempt to head off congressional efforts to 
require such disclosure. Releasing that information had no 
adverse effect on national security. In other words, when the 
ACLU sought the information through FOIA and it was 
inconvenient politically for the Government to disclose it, it 
was withheld on national security grounds. When openness became 
politically expedient, that information was released.
    The common threads running through these examples are the 
administration's disdain for the principles of open government 
that underscore the Freedom of Information Act and its refusal 
to obey and faithfully execute the laws duly passed by 
Congress.
    I see I am running out of time, so I will not go into a 
discussion of the Ashcroft memo, which has already been 
discussed by the previous panel, but I do want to point out a 
couple of things. We have put up a couple of exhibits here.
    We do agree that governments can and should withhold truly 
secret information that is essential to national security, but 
it appears time and time again that information is, instead, 
withheld to hide potentially embarrassing information or 
misconduct.
    Two examples are relevant to our torture FOIA case. You can 
see in exhibit A a heavily redacted e-mail released in response 
to the ACLU's torture FOIA request. Senator Carl Levin 
requested an unredacted version of the e-mails for use in 
Senate confirmation hearings and received a less-redacted 
version, which you can see in exhibit B. The information that 
was not redacted in the second says simply, quoting an FBI 
person, it says, ``I will have to do some digging into old 
files to see if we have specifically told our personnel in 
writing to not deviate from bureau policy.'' That was obviously 
redacted simply to avoid embarrassing the FBI. And the other 
piece that is redacted is the name of the person who was up for 
confirmation in front of Senator Levin's committee.
    The second example of FOIA abuse is more troubling, because 
it goes to the heart of how national security classification 
designations have been used to hide misconduct. As Steven 
Aftergood, senior researcher at the Federation of American 
Scientists, pointed out in testimony before the Subcommittee on 
National Security, Emerging Threats, and International 
Relations in August 2004, the Department of Defense improperly 
classified the report written by Major General Antonio Taguba 
detailing evidence of torture at the Abu Ghraib prison in Iraq. 
The report was classified secret, in violation of Executive 
Order 12958, which states, ``In no case shall information be 
classified to conceal violations of the law.''
    In closing, I would join my colleague here in recommending 
the changes to FOIA that he has already stated and that are 
contained in the Open Government Act. There are some very clear 
ways to improve the functioning of FOIA, and we look forward to 
working with the committee to do so.
    Thank you very much.
    [The prepared statement of Mr. Romero follows:]

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    Mr. Clay. Thank you so much for your testimony, Ms. 
Fredrickson.
    Our next witness will be Ms. Fuchs. Proceed.

                  STATEMENT OF MEREDITH FUCHS

    Ms. Fuchs. Thank you. Chairman Clay, Ranking Member Turner, 
members of the subcommittee, I am honored to be here with you 
today and to talk about the Freedom of Information Act. I am 
testifying for the National Security Archive, where I am 
general counsel. We are a nonprofit research institute, and we 
publish a wide range of publications in print and electronic 
form about national security, intelligence policy, foreign 
policy, and the like. We have been recognized many times for 
our journalistic work, including receiving a 2005 Emmy Award 
for outstanding news research.
    In my 5 years at the Archive, I have overseen five audits 
of Federal Government FOIA processing, including two that tried 
to identify the oldest pending request in the Federal 
Government. I think I can say that I am an expert on what the 
FOIA requestor experiences when they make FOIA requests. My 
organization has filed 30,000 FOIA requests in our 20 years of 
existence, but there are 25 of us working there filing FOIA 
requests. Everything that we request we publish, and it is all 
available and used by academics, journalists, and the public.
    Let me briefly touch on the good news. I attached to my 
testimony a list of 100-some-odd stories. Take a look at them. 
They are stories that show you the wide range of issues that 
people use FOIA to cover. That is journalists, public interest 
organizations, and the public. It shows you how people are able 
to find out about important things that matter to the American 
public, that matter to our health, our safety, our welfare, and 
the like. I am not going to focus on that. You have that in 
front of you.
    Now let me tell you the bad news. Despite the fact that 
some of us, people from groups like ours that have the capacity 
and the resources to try to fight for our records, the FOIA 
system is really plagued by delay and inefficiency and, 
frankly, by outright obstruction by some of the agencies. There 
are many people who we work with who we respect at Federal 
agencies dealing with FOIA, and I serve on the board of the 
American Society of Access Professionals, which is an 
organization of FOIA professionals within the Government, but 
there are many offices that do not live up to the standards of 
the law, nor do they live up to our expectations as American 
taxpayers.
    As you know, the FOIA requires agencies to process requests 
within 20 business days. I mentioned our 10 oldest reports. The 
first one, which was published in 2003, found requests as old 
as 16 years--a lot longer than 20 business days. Our second 
audit, which was published in 2005, found requests as old as 17 
years, in fact, many of the same ones that we had identified in 
2003. Which was the oldest? It was a 1989 request by a graduate 
student at the University of Southern California asking the 
Defense Department for records on the U.S. Freedom of 
Navigation program. Well, William Aceves, that graduate 
student, is now a full professor, and in a moment I will give 
you some good news about his request.
    Anyway, in January we began our latest 10 oldest audit, and 
we have already found that there are requests older than 10 
years still pending in the Federal Government. That is despite 
the Executive order that you heard about earlier.
    How can you address delays? Well, better reporting is an 
essential part of the package. Ms. Koontz talked a little bit 
about some of the issues with the reports. I wholeheartedly 
agree with her. We have taken a good look at those reports, 
and, just to give you an example of how misleading a median can 
be, Professor Aceves' 17-year-old FOIA request, well, if you 
had looked at DOD's annual FOIA report for fiscal year 2005 you 
would have read that DOD's median processing time in that year 
was 15\1/2\ business days for simple requests and 85 business 
days for complex requests. Well, Professor Aceves had been 
pending for over 4,000 business days. So the data is simply 
misleading, not that the agencies are misreporting it, although 
I will tell you that, in talking to agencies, we have often 
heard that when they got multiple components that median is a 
median of the medians, so it is not even a median of all the 
response times.
    I won't talk about the Veterans Administration. Ms. Koontz 
touched on that. But I would agree that the aggregating of 
Privacy Act requests and of FOIA request data is misleading and 
makes the Veterans Administration look like it gets the most 
requests and does the best job processing them; whereas, in 
fact, as you heard from Mr. Hoyt's testimony--and I will 
second, based on our experience--the VA is one of the most 
poorly functioning FOIA offices in the Government.
    So now, to get to the good news, Professor Aceves' highly 
publicized FOIA request has now been processed, and DOD's FOIA 
staff wrote ``An Ode to Freedom from Freedom of Navigation'' to 
celebrate that they have finally gotten their oldest processed.
    What about tracking? Can tracking help? I will just say, in 
my written testimony I have some more details about reporting 
that I would recommend, but I will turn to tracking.
    I think tracking is a critical issue. We brought a lawsuit 
against the Air Force after we found out that their 10 oldest 
were all our own requests, and they were old, 15 years or so. 
We found out that they have no system-wide tracking, that many 
requests were simply thrown out or lost, and recently, when we 
tried to--well, we went to court and a Federal judge found they 
had a pattern and practice of not processing FOIAs. Just 
getting them to identify where the FOIAs were in their system 
has taken months. And when we recently tried to file a FOIA 
request with the Air Force Material Command, we found a fax 
number on the Air Force Web site, which is where we sent our 
FOIA request. That fax number actually was the telephone number 
for a patient room in a hospital maternity and delivery ward. 
We searched all over the Air Force Web site, couldn't find any 
kind of fax number. We finally got another Air Force office to 
forward our request to Air Force Material Command. They told us 
they would then forward our request to every other component of 
Air Force Material Command, and that they don't keep track of 
what happens after it gets out of their office or, indeed, 
where it goes. So with a situation like that it is very hard 
for a FOIA requestor to try to press for a response.
    And then, if it is not hard enough to deal with all those 
kind of administrative issues, once you do decide to go court--
--
    Mr. Clay. Ms. Fuchs, your time has expired.
    Ms. Fuchs. I will finish up.
    Mr. Clay. Go ahead and close, please.
    Ms. Fuchs. I just want to make one more point, if I could.
    Once you do decide to go to court, the Government plays 
games. We won a lawsuit in 1990 against the CIA. For 15 years 
the CIA followed the court's decision. Suddenly, in October 
2005 they decided to change their policy. We filed a lawsuit. 
They did nothing in response to our complaint. We filed summary 
judgment motion. The night that we filed our summary judgment 
motion, at 6:30, after working hours had ended on a Friday 
night, they send a letter changing their policy.
    Next thing we expect them to argue is that we don't deserve 
attorney's fees.
    [The prepared statement of Ms. Fuchs follows:]

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    Mr. Clay. Thank you so much for that testimony, Ms. Fuchs.
    Ms. Fuchs. Thank you.
    Mr. Clay. Since you finished up, we are going to start with 
you.
    Ms. Fuchs. OK.
    Mr. Clay. So you can express a little bit more.
    Let me share with you, I have a very close friend who is a 
public information officer back in St. Louis who takes the FOIA 
requests. They work for a local government and they don't have 
a person assigned to fill these requests. I bet you run into 
that quite often with a lot of local governments who may not be 
as well financed. And this is for you, but anybody else on this 
panel can try to answer this. How do you balance that? And what 
do you do about limited resources among local governments who 
don't have enough people? This person has even expressed to me 
that newspapers, journalists come and request this information 
and they never come and pick it up. I am sure you all have 
dealt with smaller governments like that. What do you think is 
a good balance there? How should we handle that?
    Ms. Fuchs. I think resources is definitely one of the main 
concerns that the FOIA offices have, and I think it is a 
legitimate concern, but to simply say we are not going to do 
our job because we don't have resources doesn't seem 
acceptable.
    Some of the agencies that we have the biggest delays in, 
they still do their job wonderfully. I mean, I would say the 
State Department and DOD have extreme delays, and yet we find 
that the people at those agencies are professional and are 
trying to do it right.
    What concerns us is that there are agencies who don't try 
at all, and there is nothing in the law to push those agencies 
to do a better job.
    Mr. Clay. OK.
    Ms. Fuchs. That is why we think it is necessary for 
Congress to take some action.
    Mr. Clay. OK. Mr. Hoyt or Ms. Fredrickson, any response?
    Mr. Hoyt. Well, Mr. Chairman, most of my history has been 
with the Federal FOIA, not at the local level.
    Mr. Clay. OK.
    Mr. Hoyt. But it is my understanding, and some observation, 
that actually State and local governments do a far better job 
with FOIA with the State laws about freedom of information than 
the Federal Government does, even with their limited resources.
    Mr. Clay. That is probably accurate. Yes, ma'am, anything?
    Ms. Fredrickson. I don't really have anything to add there.
    Mr. Clay. Let me also go back to Ms. Fuchs and ask, do you 
find that agencies have generally complied with the 
requirements of the 1996 e-FOIA law? This law went into effect 
more than 10 years ago. Can you offer some examples of agencies 
that have not been compliant with e-FOIA requirements, such as 
the requirement to make repeatedly requested records available 
online?
    Ms. Fuchs. Thank you for asking the question. We are 
actually engaged in a big study right now about e-FOIA, and I 
hope to be able to give you even more details at a future date.
    I would say that, based on what we have looked at so far, 
there is a wide disparity between agencies' compliance with e-
FOIA. When we read the agencies' FOIA improvement plans, there 
were some agencies that had not changed their regulations since 
1996, despite the enactment of e-FOIA. When you look at the 
agencies' Web sites, many clearly do not include frequently 
requested records.
    Another problem with that is that the Justice Department 
has said frequently requested records means a specific record 
which has been requested three or more times. It is our view 
that agencies would serve themselves and the public better by 
looking at it topically and saying the public is interested in 
the Abu Ghraib. We are beginning to release them. Why don't we 
put everything up that we can put up so that all of the public 
can take a look at it as soon as possible.
    Mr. Clay. Thank you.
    Ms. Fuchs. We think that would help agencies.
    Mr. Clay. Thank you very much for that response.
    Ms. Fredrickson, from your perspective does the awarding of 
attorney's fees to a prevailing requestor provide an adequate 
incentive for agencies to be more responsive in their judgment?
    Ms. Fredrickson. I think that is certainly one element that 
would be very helpful in ensuring that the requests are 
processed appropriately, but I think Congress should also look 
at some other elements as have been laid out, are contained in 
the Open Government Act, and consider whether there should be 
additional penalties or agencies that impose excessive delays 
on the processing.
    Mr. Clay. OK. I think, Mr. Hoyt, did you mention the agency 
ombudsman?
    Mr. Hoyt. Yes, sir.
    Mr. Clay. Yes. And then so do you think that would help 
foster a better response time?
    Mr. Hoyt. Yes. I think if you created an ombudsman that had 
independent stature and teeth, some authority to make things 
happen, it would be a way for requestors who were being denied 
proper access to records to go somewhere without having to go 
to the expense and difficulty and time consuming process of 
filing a lawsuit and prosecuting it that way.
    Mr. Clay. Thank you so much for your response.
    Mr. Turner, do you have any questions?
    Mr. Turner. Yes. Thank you, Mr. Chairman.
    Mr. Hoyt, I appreciate your comment about local government. 
I served as mayor for city of Dayton two terms in Ohio, which 
in Ohio is very liberal Freedom of Information Act process.
    Mr. Hoyt. I believe your Freedom of Information history 
goes all the way back to the late 1700's, in fact, sir.
    Mr. Turner. Luckily, I do not.
    Mr. Hoyt. Your State is one of the best.
    Mr. Turner. So your knowledge would exceed mine. However, I 
would tell you that, coming from that background and also being 
very supportive of it as a tool that no one in government can 
ever say that by having a closed system in government we can 
assure either efficiency or effectiveness. You have to have the 
ability for those to review what government is doing in order 
for us to be able to hold it accountable to make certain that 
it is performing. Any closed organization or system, whether it 
be a business or government, is going to find inefficiency, 
ineffectiveness, or other perversions of their goals and 
responsibilities, to the extent that they are closed systems.
    Having said that, and being an advocate for freedom of 
information, in fact, having spoken on it as a mayor in Turkey 
to advocate for how it works for local government and how it 
can assist local governments, there is a lot of the testimony 
that concerns me that I hear of so-called advocacy groups for 
freedom of information because there is this underlying 
negativity that goes beyond just what I just said, which is it 
is in all of our best interests for the information to be out 
there.
    So my first question for you is that you mentioned several 
recommendations in your testimony. Will you provide to this 
subcommittee a draft of recommendations from your coalition 
that the committee can review that would be in the form of 
addressing what some of the issues that you see are a problem?
    Mr. Hoyt. Yes, we will.
    [The information referred to follows:]

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    Mr. Hoyt. It is my understanding that the coalition has 
worked with this subcommittee before and would be glad to----
    Mr. Turner. I would love to see that.
    Mr. Hoyt. Yes.
    Mr. Turner. Ms. Fredrickson, to go back to my other 
comments, partisan bickering is a tone in Washington, DC, that 
absolutely drives me crazy, and your statements concerning the 
administration I think really diminish the overall substance of 
the academic contribution that you can make to the issue of 
FOIA, so I have a pretty straightforward question for you. Was 
there anything that was done during the Clinton administration 
or the Carter administration with respect to withholding 
information that you thought was inappropriate or improper?
    Ms. Fredrickson. You know, I appreciate your question. We 
are a nonpartisan organization, and we----
    Mr. Turner. Well, your comments didn't sound nonpartisan. 
That is why I ask you that question.
    Ms. Fredrickson. Well, I think one of the roles of the 
Freedom of Information Act and the role of Congress as an 
oversight body is to ensure that our Government is kept to that 
straight and narrow, and, unfortunately, we have seen a lot of 
deviation from that in the past many years.
    Mr. Turner. So your answer is that there is nothing you 
found in those, the Clinton administration or the Carter 
administration?
    Ms. Fredrickson. My answer is I have been with the ACLU 
only in the past year and a half, and I was not there during 
the Clinton and Carter administrations.
    Mr. Turner. Are you unaware of any things that occurred in 
the Clinton and Carter----
    Ms. Fredrickson. However, I am sure that we had many 
concerns about things that happened in the Clinton and Carter 
administration.
    Mr. Turner. Excellent.
    Ms. Fredrickson. I would be happy to provide to the 
committee any information about prior FOIA requests that we 
had.
    Mr. Turner. Thank you.
    Ms. Fredrickson. But I can assure you that we did.
    Mr. Turner. You would serve your purposes in advocating on 
this bill and on this subject matter to include those and not 
focus on criticism of the administration.
    Ms. Fuchs, obviously one of the issues that we have with 
FOIA in both the policy substance of wanting to have this 
accountability, because it serves us all--no one person can 
look up and down an organization and ensure its quality or its 
performance by having the broad Freedom of Information empower 
everyone to be able to help the Government do that, but there 
are those that don't acknowledge sometimes that what they are 
doing is a business, and that the costs that the business is 
incurring as a result of their interests also result in profits 
to their operations. Can you speak a minute about the issue of 
those that might be looking for fee abatement or attorney fee 
waivers where, in fact, their processes are those that result 
in profits to their organization, and not, as Ms. Fredrickson 
contended, her being a nonprofit?
    Ms. Fuchs. Well, my understanding is that the largest users 
of the Freedom of Information Act are commercial interests, and 
they do pay fees for search review and for duplication of their 
FOIA requests, so they repay the Government for the cost of 
that.
    The other categories of FOIA requestors, you have a large 
category of private individuals, the people who make the 
requests to the VA for their veterans records or to the Social 
Security Administration for their Social Security records. 
Those requests are handled at a very low cost. They are 
entitled to 2 hours of free search time, 100 pages free. They 
know the name of the person they are giving it to. They are 
giving it to that person. There is no privacy issues. They 
don't incur very high costs.
    The other two categories are basically news media and the 
education and scientific institutions. Now, Congress, when it 
enacted the fee provisions, made the determination that news 
media are not commercial requestors, and the reason Congress 
made that determination is because the news media serve the 
main core purpose of FOIA, because what they do is they 
disseminate the information to the public and give the public 
the information they need to know. So there are costs that are 
incurred, and those costs are not generally charged to the news 
media, with the exception of duplication fees.
    Mr. Turner. Mr. Chairman, I want to thank you again for 
holding this hearing, because, as I stated, this is a very 
important act, and it is very important because it ensures 
performance of Government on all levels on behalf of all of us. 
I know that in a hearing like this that one of the things that 
we have to look at are the problems with it, but I do think 
that before we just move on from looking at the problems we do 
have to acknowledge that I am sure that there are information 
requests that show where there is no conspiracy, where there 
are people that are doing a really good job, and that there are 
people every day who show up in the Government and execute 
their duties in a way that makes us all proud, even though we 
look at the problems today.
    Mr. Clay. Thank you, Mr. Turner. We know that the law has 
been in existence since 1966, and I am sure they have had to 
iron out some difficulties with the law over the years, and 
before either one of us got here.
    Mr. Turner. Absolutely.
    Mr. Clay. I will turn now to Mr. Hodes.
    You are recognized for 5 minutes.
    Mr. Hodes. Thank you, Mr. Chairman.
    Ms. Fredrickson, thank you for your testimony, which I 
found very enlightening. I would say that I don't believe that 
open government is a partisan issue. It is an American issue. 
Democracy requires open government. It doesn't matter whether 
or not there is a Republican administration or a Democratic 
administration, so I appreciate the perspective of your 
organization on this.
    In her testimony, which I know you were present for, Ms. 
Pustay from DOJ told us that the Ashcroft memo ``changed the 
tone'' but didn't narrow the application of any of the 
standards of FOIA. Do you agree? And, if not, why not?
    Ms. Fredrickson. Well, I think there is actually evidence 
to the contrary. I believe GAO, itself, did a study that 
reviewed with FOIA officers throughout the Government whether, 
in fact, the Ashcroft memo had affected their interpretation of 
how to comply with FOIA. I believe that there was a large 
percentage of those FOIA officers--and I think Meredith 
probably has the number in her head, but I think it was a third 
of the FOIA officers said yes, it would actually make them much 
less inclined to provide the information to the person 
requesting. So there has definitely been an impact.
    Mr. Hodes. Do you believe that Congress should take steps 
to reverse the impact of the Ashcroft memo on the way DOJ is 
dealing with FOIA?
    Ms. Fredrickson. Yes, we certainly do. The Reno Doctrine 
that preceded the Ashcroft memo, with a presumption toward 
disclosure, we think is much more consonant with what 
congressional intent was behind the Freedom of Information Act. 
There are exemptions already stated in FOIA that gives the 
Government the opportunity to protect important information, 
and there shouldn't be yet another step beyond that to which 
the Government can go to keep critical information out of the 
hands of the public.
    Mr. Hodes. To the panel, in general, I ask the following. I 
note that both the suggestion for a FOIA ombudsman and 
suggestion for tracking as critical components of the suggested 
reforms. It strikes me that if UPS can track packages, we 
should be able to track FOIA requests. Tell me, educate me, did 
anything in the 1996 e-FOIA provisions provide for a central 
repository and central tracking of FOIA requests by date, so 
that there was one place that we could go to track time, 
compliance, things like that?
    Ms. Fuchs. No, there is nothing that requires a central 
tracking in the FOIA right now. Most agencies maintain FOIA 
logs. The agencies that have sophisticated logs have data bases 
and they are able to see where the FOIA request is. Some 
agencies have paper logs and you can request FOIA logs from 
agencies and see them filled out, date, name, etc. Some 
agencies have no logs.
    Mr. Hodes. So there is no single standard that applies 
across the Government as to how logs should be kept, how they 
should be maintained, how the data bases should be maintained 
for FOIA requests?
    Ms. Fuchs. No.
    Mr. Hodes. Would that be helpful?
    Mr. Hoyt. Yes.
    Ms. Fuchs. Yes.
    Mr. Hodes. Why would it be helpful?
    Mr. Hoyt. It would help open up the process, make the 
process more transparent so that two things: people with FOIA 
requests would be able to tell where they are, where they are 
moving through the process, and it puts heat on the people 
processing to, if they can hide behind a veil of I don't know 
where it is, it is much harder for you to get results.
    Mr. Hodes. Do you think entitlement to legal fees is enough 
of a sanction?
    Mr. Hoyt. No.
    Mr. Hodes. What else ought to be done?
    Mr. Hoyt. Well, in the Open Government Act that was 
reported out of the committee last year, it is my understanding 
that contained another type of sanction, which is removing some 
of the exemptions, not privacy or national security, but some 
of the exemptions that an agency or department could claim as a 
reason for keeping something secret if it failed to meet the 
deadline.
    Ms. Fuchs. The other thing is that the attorneys fees is 
not really a sanction. I mean, it is a private attorney general 
provision. It is a way of making the public have the ability to 
enforce the law against the Federal Government, which will not 
otherwise enforce the law against itself. It is not a sanction. 
And for the average citizen who is not going to bring a 
lawsuit, it doesn't help them at all. It helps potentially 
groups like ours who can get lawyers to represent us, but I 
understand that most attorneys who are approached to do a FOIA 
case will tell your average member of the public that they have 
to put a pretty big retainer on the table to get it done.
    Ms. Fredrickson. I think there is one other issue, which is 
more accountability inside the Government, the people who are 
responsible in the Government for responding to FOIA requests. 
There needs to be some kind of aspect of their personnel review 
or something about their jobs that makes them accountable for 
processing these requests.
    Mr. Hodes. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Clay. I thank you. Thank you for your line of 
questioning.
    Mr. Yarmuth of Kentucky, welcome to the subcommittee.
    Mr. Yarmuth. Thank you, Mr. Chairman. It is a pleasure to 
be here.
    Mr. Hoyt, I read in your testimony your background, and you 
and I come to this spot from fairly similar backgrounds, 
because I was a journalist, too, before getting in this field.
    Mr. Hoyt. I understand.
    Mr. Yarmuth. One of the things that concerns me in 
listening is we obviously face two issues here, it seems to me. 
One is a logistical one, and some of the suggestions that you 
have made, Mr. Hoyt, in your testimony deal with logistical 
sides of it. We also have the issue of recalcitrance for 
whatever reason it may be, whether it is personal 
embarrassment, whether it is legitimate national security, 
whether it is political, or whatever. All I have heard so far 
is a discussion of how we get at this information through some 
kind of adversarial process, and adversarial processes--I mean, 
in this case, some of these cases it is definitely adversarial. 
But has there been any discussion among those of you who study 
this subject on a regular basis for some kind of way to get to 
resolve these disputes outside of litigation or some other 
thing that results in a great deal of expense and time-
consuming activity?
    Mr. Hoyt. Well, Congressman, I think that is where the 
ombudsman provision particularly could come into play. If you 
had an ombudsman who had clout and some stature of independence 
within a department so that office, that individual is not 
subject to some of the political pressures that I think come 
into play sometimes with these decisions, you could keep it 
from becoming the formally adversarial process that you have to 
go into when you file a lawsuit.
    Mr. Yarmuth. Has there been any discussion of something--
and it probably is a nasty word to bring up, but FISA or some 
kind of analogous situation where there was a panel empowered 
to hear some of these cases, just throwing it out?
    Ms. Fuchs. Well, there is, in the classification realm, 
there is a panel that deals with classification decisions that 
go through mandatory declassification review. There hasn't been 
much discussion of that in the FOIA situation, and there are a 
couple of reasons for that. Each agency's records can be very 
different, and different issues can be raised by those records 
and they have different exemptions that they tend to rely on, 
so one panel--it would be hard for a small panel to have the 
expertise to handle all of those issues.
    One of the things that we would advocate for would be 
greater independence in the administrative appeal process, 
which we find works very well at some agencies, like the State 
Department, where they have different people look at the 
administrative appeal and look at the initial FOIA request, 
whereas at other agencies it is the exact same people, and so, 
you know, it is not surprising they don't change their mind in 
administrative appeal.
    Ms. Fredrickson. And I do think that part of the 
accountability that we are talking about that could be built 
into FOIA would actually help this if there was more of a 
presumption toward disclosure. I think you would have a whole 
lot less litigation.
    Mr. Yarmuth. Where in this whole equation does this 
committee and this Congress enter in? It seems to me that 
obviously when you have one party in control of the executive 
branch, one party in control of the Congress, whichever party 
it may be, the availability or the usefulness of an oversight 
committee like this is minimized. It is going to be much more 
effective when there are differing parties. But how can the 
Congress better exercise its role?
    Ms. Fuchs. Well, I think that oversight is a key part of 
it. Agencies should be asked to explain why they are not 
satisfying what the law requires of them. If the Congress were 
to require better reporting, it would make it possible for you 
to do that.
    I will say that in 1974 when FOIA was strengthened 
significantly it was over President Ford's veto, so Congress 
has power, despite the fact that the administration may be 
headed by another party.
    But I think the other thing just to remember is, even 
though President Bush issued an Executive order which has been 
helpful in many ways, we have started to look at the compliance 
reports from the Executive order, from the agencies, and many 
of them have not met their goals. In fact, some of them, what 
they have done is simply postpone their goals for another year. 
There is nothing, there is no recourse in that they haven't met 
their goals. So when you come to that point when they are not 
able to do it themselves, that is when Congress can step in.
    Mr. Yarmuth. So I take it that some kind of regular 
reporting requirement to Congress of performance by all the 
agencies on this matter, rather than just waiting for a piece 
of legislation and hearings, would be something you might 
support?
    Ms. Fuchs. Yes.
    Mr. Hoyt. But we would support legislation. If I am not 
misquoting the chairman from at the outset of this hearing, you 
talked about the Open Government Act as a starting point. I 
hope that you would take up the Open Government Act again. I 
think there are some things about it that need improvement, 
particularly in the ombudsman feature. But I hope that you 
would use that piece of legislation.
    By the way, I couldn't agree more with Congressman Hodes 
that this is not a partisan issue. It is not an ideological 
issue. Some of the most eloquent statements I have heard about 
freedom of information have come from people like Senator 
Cornyn, who is a real champion of this. It is also not a 
partisan issue on the other side, because the truth is the 
original FOIA passed during the Johnson administration. 
President Johnson didn't want to sign it, and only did so at 
the very last minute and very reluctantly.
    Mr. Yarmuth. Thank you for your testimony here today. I 
yield back.
    [The prepared statement of Hon. John A. Yarmuth follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Hoyt. Thank you.
    Mr. Clay. I thank the gentleman from Kentucky.
    Mr. Hoyt, you are exactly right. We do plan on bringing up 
the Open Records Act, as well as this subcommittee does have 
jurisdiction over the implementation of.
    Mr. Hoyt, let me ask you, outside of national security have 
members of your organization identified specific areas where 
there are increasing conflicts with agencies in gaining access 
to Government records and proceedings?
    Mr. Hoyt. The answer is, I think, Mr. Chairman, if you 
refer to the report that you have so graciously put into the 
record, I think when you read that report you will see that 
across the Government the backlog is increasing, and it is 
increasingly difficult to get information.
    Mr. Clay. How about the proliferation of pseudo 
classifications such as sensitive but unclassified.
    Mr. Hoyt. Yes.
    Mr. Clay. Is that limiting the amount of information 
available to you?
    Mr. Hoyt. Yes, it is. The discussion before about the Card 
memo and about the Ashcroft memo, those have--I think the word 
that was used was tone, but to me that is kind of an 
understatement about the impact. The fact of the matter is they 
have had a very chilling effect, and agencies, I believe, have 
taken that as a signal and they have acted on that signal.
    Mr. Clay. Thank you for that response.
    Ms. Fredrickson, in general, about how many FOIA requests 
does your organization file on an annual basis? And of these, 
about how many receive an adequate response within the 
prescribed 20-day statutory window?
    Ms. Fredrickson. Well, we file a great number of FOIA 
requests, and I would have to get back to you with a typical 
number.
    Mr. Clay. Sure.
    Ms. Fredrickson. I would have to say that of late it has 
been very difficult. We have had to engage in quite a bit of 
litigation to actually get responses to our FOIA requests. So I 
will get back to the committee and provide you with further 
information on it.
    Mr. Clay. Could you give us an approximate percentage now 
on which ones you think may or may not get a response?
    Ms. Fredrickson. Well, our FOIA typically involve fairly 
controversial issues, so I think probably most of them meet 
resistance.
    Mr. Clay. So quite a few of them----
    Ms. Fredrickson. Quite a few.
    Mr. Clay [continuing]. Get full denial.
    Ms. Fredrickson. If not all of them. When we do get 
documents, it takes quite a long time and, as you can see, they 
are very, very heavily redacted, and even that is after the 
product of litigation. So I think it has been very, very 
difficult.
    Mr. Clay. Thank you for that response.
    Ms. Fuchs, last fall your organization expressed misgivings 
with the recent attorney general report and agency FOIA 
activities. Please elaborate for us on your areas of concern.
    Ms. Fuchs. Well, we looked at all of the 1991 FOIA 
improvement plans, and it was clear from reading those FOIA 
improvement plans that, without high-level agency support for 
the changes, and also resources in some cases, it would be 
impossible for agencies to meet those goals. And what concerned 
us is that the attorney general then reported on those reports 
to the President and didn't acknowledge those concerns. And 
also one of the problems in the FOIA area is there is no 
central overseer who can tell agencies you have to do it. You 
have to fix the problem. The Justice Department does an 
outstanding job issuing guidance, and it is just guidance, and 
no one has to follow it, and in some cases they don't pay any 
attention to it. So it would be great to have a situation where 
improvements could be mandated.
    Mr. Clay. Sounds like you have some very interesting 
suggestions for streamlining this process and making it better 
for U.S. citizens. Thank you.
    Ms. Fuchs. Thank you.
    Mr. Clay. Are there any further questions? Mr. Hodes.
    Mr. Hodes. I just have one last one, Mr. Chairman. Thank 
you.
    In talking about the office of an ombudsman, and following 
up on Mr. Yarmuth's question about alternatives to litigation, 
in my background as an attorney in New Hampshire we have 
instituted mandatory alternative dispute resolution for cases 
headed to litigation, which has reduced by 50 percent the 
burden on the courts and does a great service, I think, to 
citizens. Do you think that having mediation available through 
the office of the ombudsman would help solve these cases before 
they get to costly litigation?
    Mr. Hoyt. If it didn't rule out litigation, if litigation 
became necessary. I wouldn't like to give up that right.
    Mr. Hodes. Mediation is generally a non-binding process. 
There are various forms of alternative dispute resolution which 
are non-binding which provide the opportunity for people to 
resolve their disputes before going to court but don't 
foreclose them.
    Mr. Hoyt. Another way that the ombudsman could help in this 
process, a number of States have ombudsmen and have a process 
under which ombudsmen issue advisory opinions, and they don't 
have the power to force an agency to do something, but they 
carry great weight, because in the event of litigation these 
are admissible as evidence and they carry a lot of weight. So 
something like that could be a feature you might want to 
consider.
    Mr. Hodes. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Clay. Thank you, too.
    The gentleman from Kentucky, any further questions?
    [No response.]
    Mr. Clay. If not, I would just like to conclude our first 
hearing on this important subject by saying that it is evident 
that the public needs to have access to certain Government 
information, and it will certainly be a goal of this committee 
to help streamline that process.
    I want to thank the witnesses of this panel and the 
previous panel for your participation in this.
    Without objection, the committee stands adjourned. Thank 
you.
    [Whereupon, at 4:27 p.m., the subcommittee was adjourned.]

                                 
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