[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
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
43-029 PDF WASHINGTON : 2008
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]