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


 
    IMPLEMENTATION OF THE OFFICE OF GOVERNMENT INFORMATION SERVICES 

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

                                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

                             SECOND SESSION

                               __________

                           SEPTEMBER 17, 2008

                               __________

                           Serial No. 110-143

                               __________

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


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

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

                     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 September 17, 2008...............................     1
Statement of:
    Weinstein, Allen, Archivist of the United States, National 
      Archives and Records Administration, accompanied by 
      Adrienne Thomas, Deputy Archivist, National Archives and 
      Records Administration; Thomas Blanton, Director, National 
      Security Archive at George Washington University; Patrice 
      McDermott, Openthegovernment.org; Rick Blum, coordinator, 
      Sunshine in Government Initiative; and Terry Mutchler, 
      executive director, Pennsylvania's Office of Open Records..     7
        Blanton, Thomas..........................................    18
        Blum, Rick...............................................    39
        McDermott, Patrice.......................................    30
        Mutchler, Terry..........................................    50
        Weinstein, Allen.........................................     7
Letters, statements, etc., submitted for the record by:
    Blanton, Thomas, Director, National Security Archive at 
      George Washington University, prepared statement of........    21
    Blum, Rick, coordinator, Sunshine in Government Initiative, 
      prepared statement of......................................    41
    Clay, Hon. Wm. Lacy Clay, a Representative in Congress from 
      the State of Missouri, prepared statement of...............     3
    McDermott, Patrice, Openthegovernment.org, prepared statement 
      of.........................................................    32
    Mutchler, Terry, executive director, Pennsylvania's Office of 
      Open Records, prepared statement of........................    53
    Weinstein, Allen, Archivist of the United States, National 
      Archives and Records Administration, prepared statement of.     9


    IMPLEMENTATION OF THE OFFICE OF GOVERNMENT INFORMATION SERVICES

                              ----------                              


                     WEDNESDAY, SEPTEMBER 17, 2008

                  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 p.m. in room 
2154, Rayburn House Office Building, Hon. Wm. Lacy Clay 
(chairman of the subcommittee) presiding.
    Present: Representatives Clay and Yarmuth.
    Staff present: Darryl Piggee, staff director/counsel; Jean 
Gosa, clerk; Alissa Bonner and Michelle Mitchell, professional 
staff members; Charisma Williams, staff assistant; Leneal 
Scott, information officer; and Charles Phillips, minority 
senior counsel.
    Mr. Clay. The Information Policy, Census, and National 
Archives Subcommittee of the Oversight and Government Reform 
Committee will come to order.
    Yes, we are experiencing some technical difficulty with the 
sound system, and we will try to fight through it.
    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 Member 
who seeks recognition.
    Without objection, Members and witnesses may have 5 
legislative days in which to revise and extend their remarks.
    Let me start with the opening statement.
    Today the committee will examine the structure and function 
of the Office of Government Information Services [OGIS], 
established by the Open Government Act of 2007. Congress passed 
the Open Government Act to help citizens obtain timely 
responses to FOIA requests. OGIS is charged with reviewing FOIA 
policies and procedures of administrative agencies to make sure 
they are in compliance with the law.
    Congress placed OGIS within the National Archives and 
Records Administration to serve as an impartial mediator to 
resolve disputes between FOIA requestors and administrative 
agencies. Prior to the act, when an agency failed to provide 
information requested under FOIA, a requester was forced to sue 
an agency to get the information. For average citizens who 
comply, a significant percentage of the FOIA requestor 
community, the cost of litigation is prohibitive.
    It has been 9 months since the President signed the Open 
Government Act into law, but there has been no movement on 
establishing OGIS. Congress has appropriated $1 million to fund 
the planning for OGIS; however, the funds will not likely be 
available until 2009.
    Members are concerned that delays in structuring the office 
will increase the backlog on FOIA requests and undermine the 
purpose of establishing OGIS.
    Today's hearing will provide the U.S. Archivist with an 
opportunity to share his strategic plan to implement the law 
and establish OGIS. We will also hear from the open government 
community about how to structure a highly functional office 
that will make FOIA work more effectively.
    I thank all of our witnesses for appearing today and look 
forward to their testimony.
    [The prepared statement of Hon. Wm. Lacy Clay follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. I now yield to my friend from Kentucky, Mr. 
Yarmuth. You may have up to 5 minutes.
    Mr. Yarmuth. Thank you, Mr. Chairman. And thank you for 
holding this hearing. I want to thank all the witnesses for 
appearing today.
    I have two very personal reasons for my interest in this 
hearing. One is, as someone who spent most of the last 25 years 
before entering Congress in journalism, I understand how 
critical FOIA is to the functioning of a free society and free 
democracy, so I am very concerned that what we do here in 
Congress to make sure that FOIA functions effectively in the 
Federal Government is very important to me.
    Second, this is Constitution Day, 221st anniversary of the 
Constitution. I wear Article 1 buttons to show my respect for 
not just the Constitution but specifically for the 
establishment of the Congress and the idea, as expressed in the 
Constitution, that the people decide the law of the land 
through their representatives in Congress. The Founding Fathers 
vested all legislative authority in Congress, and it seems to 
me that what we have seen here is possibly another example in 
which Congress' authority is being undermined by the executive 
branch, not being respected by the executive branch, that the 
checks and balances that the Founding Fathers contemplated are 
not being respected throughout Government, and therefore I look 
forward to the testimony and exploring these questions so that 
the American people understand what is at stake when Government 
doesn't function as the Constitution anticipated it would.
    So thank you, again, Mr. Chairman, for holding this 
hearing. I look forward to the testimony.
    Mr. Clay. Thank you, Mr. Yarmuth.
    We will now take testimony from the witnesses. We are 
fortunate to have several FOIA experts to offer their insight 
on what OGIS should look like and how it can best achieve its 
mission.
    We welcome the Honorable Allen Weinstein, Archivist of the 
National Archives and Records Administration. He is accompanied 
by Deputy Archivist Adrienne Thomas. Welcome to you both.
    We also have with us Thomas Blanton, director of the 
National Security Archive at the George Washington University. 
And Patrice McDermott, Director of openthegovernment.org, and 
Rick Blum, coordinator for Sunshine in Government Initiative, 
as well as Terry Mutchler, executive director of Pennsylvania's 
Office of Open Records.
    Let me thank all of you for appearing today before the 
committee.
    It is the policy of this subcommittee to swear in all 
witnesses before they testify. Would you all please stand and 
raise your right hands.
    [Witnesses sworn.]
    Mr. Clay. Let the record reflect that the witnesses 
answered in the affirmative.
    I would ask that each witness now give a brief summary of 
their testimony. Please limit your summary to 5 minutes. Your 
complete written statement will be included in the hearing 
record.
    Mr. Weinstein, we will begin with you.

STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE UNITED STATES, 
 NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ACCOMPANIED BY 
   ADRIENNE THOMAS, DEPUTY ARCHIVIST, NATIONAL ARCHIVES AND 
  RECORDS ADMINISTRATION; THOMAS BLANTON, DIRECTOR, NATIONAL 
   SECURITY ARCHIVE AT GEORGE WASHINGTON UNIVERSITY; PATRICE 
   McDERMOTT, OPENTHEGOVERNMENT.ORG; RICK BLUM, COORDINATOR, 
    SUNSHINE IN GOVERNMENT INITIATIVE; AND TERRY MUTCHLER, 
   EXECUTIVE DIRECTOR, PENNSYLVANIA'S OFFICE OF OPEN RECORDS

                  STATEMENT OF ALLEN WEINSTEIN

    Mr. Weinstein. Good afternoon, Chairman Clay. I am Allen 
Weinstein, Archivist of the United States. I am accompanied by 
Deputy Archivist Adrienne Thomas.
    In preparing the testimony which I am about to deliver to 
this congressional committee, I treated with utmost seriousness 
my own obligations as a member of this administration to 
subordinate any personal views on the matter at hand, to stick 
to the facts, and to recognize the deep concerns felt by this 
administration regarding the matters at hand.
    As you know, in the fiscal year 2009 budget submission to 
Congress, the administration requested that Congress transfer 
responsibilities for the Office of Government Information 
Services [OGIS], from the National Archives to the Justice 
Department, the administration's lead agency on FOIA issues. 
Both House and Senate Appropriations Subcommittees have 
indicated their disagreement with locating OGIS in the Justice 
Department. We should keep in mind the final fiscal year 2009 
Appropriations Act resolving the issue has not yet become law 
and the issue remains unsettled.
    The Archives' position on the matter can be stated simply 
we have not sought ownership of the tasks involved. Indeed, we 
are not far from Lincoln's famous comment, Mr. Chairman, of the 
gentleman being run out of office on a rail who told an 
onlooker, ``Were it not for the honor of the thing, he would 
just as well have walked.''
    Can we do the job if assigned it? There is little question 
that we can. Should we do so remains a more complicated manner 
and, candidly, without adequate funding, a downright impossible 
one.
    Make no mistake: should NARA be funded by Congress for the 
OGIS and that agreement signed into budgetary law by the 
President, we will respond to the challenge and the intent of 
both Congress and the administration in shaping an Office of 
Government Information Services devoted to maintaining the 
dialog and working closely with the Justice Department, as well 
as with every agency of the Government to improve public access 
to Government information. I cannot imagine that the President 
and Vice President, agency heads, and bipartisan commission 
leaders would expect any less of us.
    The world of Freedom of Information requests is a complex 
one. I know from personal experience on both sides of the 
fence, Mr. Chairman. I was one of the first Americans to file 
with success a Freedom of Information Act lawsuit following 
passage of the 1974 amendments, and today I oversee an agency 
that receives over 1 million requests a year from the public 
for information. Not all are Freedom of Information requests, 
but they often require that the public's right to information 
be balanced with the need to protect certain kinds of 
information.
    The Freedom of Information Act recognizes this balancing 
act by providing nine exemptions for withholding information. 
It is a testament to the quality of that legislation that these 
exemptions still serve us well today. In the intervening years 
since the passage of the Freedom of Information Act, both the 
public awareness of this right of access and the bureaucracy 
necessary to service that right have grown significantly. Many 
of the issues addressed by your bill, Mr. Chairman, and by 
public law 110-175 are a direct result of that growth.
    My pledge to you, Mr. Chairman and members of the 
committee, is that if called upon I will set up the Office of 
Government Information Services as a fair and independent voice 
in the continuing push and pull between maximum public access, 
on the one hand, and the necessity on the other to withhold 
information under the FOIA exemptions.
    I thank the committee for listening to this brief 
statement, and I will try to respond to any questions you might 
have.
    [The prepared statement of Mr. Weinstein follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. Thank you so much, Mr. Weinstein.
    Mr. Blanton, we will proceed with you.

                  STATEMENT OF THOMAS BLANTON

    Mr. Blanton. Thank you, Mr. Chairman, Congressman Yarmuth.
    This hearing is an essential part of the process. There is 
nothing like a hearing to clarify the mind or get the executive 
branch to give us some answers. Frankly, I was shocked to see 
the written testimony that came to this subcommittee just 
yesterday because that is not what we have been hearing and it 
is completely unrealistic as an approach to setting up a 
successful Office of Government Information Services. To shuck 
and jive and run still from the task, which is what the 
administration is doing, by still saying this belongs at the 
Justice Department is just wrong. The fate of a statute, the 
intent of Congress, the unanimous opinion of the requester 
community, and the unanimous approval of the Congress actually 
hangs in the balance here.
    I can tell you this function does not belong at the 
Department of Justice. There is an inherent conflict of 
interest there that was recognized by the requester community 
and by this committee and by this Congress that said no. Those 
are the folks that defend agencies against requesters. They 
can't mediate. And in fact, they don't mediate. Contrary to the 
prepared testimony presented by the Government, the Office of 
Information Policy at the Justice Department does not mediate. 
Just last year we approached them and said CIA is breaking the 
law on fees on the Freedom of Information Act and we are going 
to have to go to court unless you step in and tell them. 
Justice Department said, well, we think you are right. They are 
breaking the law. There is established case law. But no, we 
can't really step in. We had to go to court.
    The CIA has just sent an apology letter to our General 
Counsel saying, we were wrong. Sorry about that. We take it 
back. But meanwhile hundreds of hours of our time, our pro bono 
lawyers' time, and taxpayers' time was taken up by a dispute 
that should never have gone so far. The Office of Information 
Policy is not doing this job, won't do this job, can't do this 
job, and shouldn't do this job. That is why this legislation, 
this statute, set up the Office of Government Information 
Services precisely at an independent agency, respected agency.
    I must say that, on behalf of most of the requester 
community, we were hoping that agency would run out and embrace 
it and take it and take that vote of confidence and go do great 
things with it, because that is what I really hoped to see 
during this hearing today, Mr. Chairman, was a discussion of 
some of the practical steps that we all need to participate in, 
the stakeholders, the Congress, the National Archives, and the 
rest of the executive branch, frankly, to make this new 
function work.
    The United States is falling behind. It used to be a leader 
on the Freedom of Information Act. Now the backlogs are 
mounting. Now the restrictions are mounting. The secrecy stamps 
are flying at record pace. Around the world, other countries 
are doing this kind of function--mediation function, ombudsman 
function--very successfully. There are great lessons also at 
the State level. We are going to hear one of those later in the 
prepared testimony here. There are lessons we should take from 
all those to make this work. There are a bunch of practical 
steps that we need to focus on.
    I think you will see in the statements a lot of consensus 
among the stakeholders on the need for leadership, the need for 
a commitment to open Government, the fact that the decision 
about who is going to be the director of this office is maybe 
the most important single one, and we had better get ready for 
that because that person and that person's commitment to open 
government is what is going to make this work.
    There is consensus, I think, among your witnesses here 
about the necessity for transparency in the office's functions, 
the way in which the Web and the Internet can help build a body 
of advice and opinion and guidance that is good for agencies, 
good for the efficiency of Government, and good for requesters 
to figure out how to make their own requests better and bring 
less of a burden on the agencies.
    I think there is consensus about the necessity to get 
started now. I do hope that after this hearing the National 
Archives will continue the process that it has started. I must 
give the credit to you, Mr. Chairman, and to this subcommittee 
for setting a date for a hearing, because that tends to drive 
some dialog that might not otherwise take place. I hope to see 
that dialog continue, because we all have to be ready. This is 
going to be a mandate. There will be an office in March 2009. 
National Archives is going to have to carry it out, we need to 
have a job description already written. We need to have some 
ideas about the guidance and the regulations that office is 
going to put out. We need to have some very practical steps 
that you are going to hear from Pennsylvania and Illinois' 
experience about what that office can do to make things work.
    We need to be ready to go, because already just the 
realities, having a director in place some time the spring of 
2009, staffing up the other five or six people that budget will 
support maybe by the end of the summer, some guidance and 
regulations by the end of the year. We are talking 2 years 
after Congress put this function into law before we are going 
to see real benefit to the public, to the requester.
    Finally, I just want to say my No. 1 recommendation for 
making this office work is that if it becomes just a complaint 
bureau it will fail. The experience in Great Britain when they 
established an Information Commission, it would be this kind of 
appeal and mediation office, he set up essentially a first in/
first out complaint line. Right now he has a 2,000 case backlog 
because it just built up.
    The only way, when you are talking about 21.8 million 
Freedom of Information requests every year to the Government, 
when you are talking about a minimum of 8,000 administrative 
appeals into the Federal Government, you are talking about a 
potential caseload level that could overwhelm this office. It 
has to be proactive. It has to take preventive measures. It has 
to use the Government Accountability Office provision that is 
in the law, do those audits of agencies, find the problem 
agencies, define them, figure out how to fix them, use those 
other resources.
    Then once you have an idea of how to fix it, and that is 
what OGIS should produce, use the Freedom of Information Act 
public liaison officers who were originally in President Bush's 
Executive order, adopted into statute, have statutory role in 
assisting in mediating disputes. Those folks should be your 
front-line people for the office to empower. Every one of those 
people should have a job description that says you are going to 
carry out the advisory opinions of the office. That is what is 
going to make it work.
    I really thank you for your attention to this, Mr. 
Chairman, because without that attention I don't even think we 
would have the progress that we do have to date.
    [The prepared statement of Mr. Blanton follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. Thank you so much, Professor Blanton.
    We will go to Ms. McDermott. You may proceed.

                 STATEMENT OF PATRICE McDERMOTT

    Ms. McDermott. That is a hard act to follow.
    Thank you, Mr. Chairman and Congressman Yarmuth, for the 
opportunity to speak today on the implementation of the new 
Office of Government Information Services created by the Open 
Government Act.
    I am speaking today on behalf of a coalition of more than 
70 organizations--of which National Security Archive is one--
that believe that a transparent and open Government is 
essential to holding Government accountable and earning the 
trust of the American public. Members of the coalition worked 
very hard to ensure the passage of the Open Government Act, and 
the new OGIS was considered a key component of that 
legislation. We are pleased that you are conducting this 
hearing and appropriate the opportunity to share our thoughts.
    First let me concur with Mr. Blanton's statement. I 
absolutely agree with everything in it.
    I am focusing my comments today on the responsibility of 
OGIS to review agencies' FOIA policies and procedures, their 
compliance with the act, and to recommend policy changes to 
Congress and the President. Ensuring compliance with FOIA has 
not until now been any entity's clear responsibility or focus, 
with well-documented results or lack thereof.
    The 1974 amendments to the FOIA require the Attorney 
General to include in its annual report a discussion of the 
efforts undertaken by department to encourage agency compliance 
with FOIA. The Department's report generally identifies 
guidance and training. It has adjured any responsibility for 
ensuring compliance because it says it does not have 
responsibility for doing so.
    On December 14, 2005, the President issued an Executive 
order on citizen-centered and results-oriented FOIA 
administration, but other than reporting back annually for a 
couple of years there was no real accountability built into the 
order, nor was there any meaningful oversight of the agency's 
plans or the implementation thereof. Indeed, the 2007 report to 
the President obscured the overall failure of the agencies to 
accomplish much of significance. The Department only describes 
progress at 25 out of 90 agencies that prepared improvement 
plans saying that they had made meaningful progress, but his 
graphics showed that only 11 of those 25 agencies met all their 
self-generated milestones, and that 3 agencies did not meet a 
single target, that nothing has happened.
    The current situation then is lack of enforcement 
mechanisms, lack of accountability, and lack of compliance with 
many aspects of the law. No entity has had clear responsibility 
for ensuring compliance, and none does so.
    Section 11 in the Open Government Act gives OGIS the 
responsibility for reviewing FOIA policies and procedures and 
the compliance of administrative agencies in recommending 
policy changes. The same Section 11 gives the agency chief FOIA 
officers responsibility to monitor FOIA implementation 
throughout the agency and keep the head of the agency, its 
legal officer, and the Attorney General informed of the 
agency's performance, and to recommend to the head of the 
agency such adjustments necessary to improve the implementation 
of FOIA. Thus, we have two distinct and separate avenues for 
review and compliance for FOIA and making recommendations: the 
OGIS responsibilities and the chief FOIA officer's reporting to 
agency leadership and to the Attorney General.
    There may be a simple fix for this, perhaps by requiring 
the reports to be publicly available as they are issued, 
perhaps by setting up a CFO office headed by the Archivist and 
chaired by the head of OGIS. But as it stands now, there is no 
required communication with OGIS from the chief FOIA officers 
about their findings and recommendations.
    Because of this, it is clear, as others have indicated and 
will indicate, the head of OGIS must be at a senior level to be 
at a comparable level with the chief FOIA officers, and he or 
she should report directly to the Archivist.
    The statute also gives the Government Accountability 
Office, as Mr. Blanton noted, ongoing responsibility to conduct 
audits of administrative agencies on the implementation of the 
FOIA and to issue reports detailing the results. We think that, 
given the at least initial staffing of OGIS, it is appropriate 
for GAO to perform these audits in lieu of OGIS doing so, and 
we presume these reports will be used by OGIS in fulfilling its 
responsibilities.
    Simply receiving reports is not sufficient, however. 
Ensuring compliance will take more resources than OGIS has 
allocated to it at present.
    We also believe that it is essential that there be a robust 
and transparent mechanism for public input on agency compliance 
and needed changes. It is not enough to look at agency reports 
and talk with agency personnel, nor should the focus of such 
public input be limited to the items in the annual reports that 
agencies are required to complete and the recommendations of 
the chief FOIA officers. Given the limited resources of this 
new office, some hard decisions are going to have to be made 
about the use of staff and funding.
    The public access community believes strongly in both 
ensuring compliance and in the mediation services and advisory 
opinions, obligations of OGIS. The balancing of resources 
required of the office argue strongly for funding adequate to 
both of its missions and for meaningful support within the 
National Archives. It will also require the ongoing oversight 
of Congress.
    Thank you for this opportunity. I will be pleased to answer 
any questions.
    [The prepared statement of Ms. McDermott follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Clay. Thank you, Ms. McDermott.
    And now we will hear from Mr. Blum. Thank you for being 
here.

                     STATEMENT OF RICK BLUM

    Mr. Blum. Thank you, Mr. Chairman and Congressman Yarmuth. 
I am Rick Blum, coordinator of the Sunshine in Government 
Initiative, a coalition of nine major media associations formed 
in 2005 to promote open Government policies and practices.
    Our coalition strongly supported the creation of the Office 
of Government Information Services within the National Archives 
when Congress enacted the Open Government Act. Earlier this 
year, we first issued recommendations for ramping up OGIS this 
spring. These are attached to my written testimony.
    Mr. Chairman, we commend you, Chairman Waxman, and the 
committee for spearheading passage of FOIA reforms. We also 
applaud you for having this oversight hearing on implementing 
OGIS specifically. Congressional oversight of this provision is 
critical to ensure that OGIS is implemented in the way that 
Congress intended and in the way that will make FOIA work 
better for average citizens.
    Let me remind you that, despite its problems, FOIA is a key 
tool to citizens to hold Government accountable; yet, the media 
and citizens often run into roadblocks with Government agencies 
where there is no recourse except an expensive lawsuit. OGIS 
will provide a new, much needed alternative to resolve FOIA 
disputes.
    Let me give you an example of how this office can help. 
Mark Schleifstein, a reporter for the Times Picayune in New 
Orleans, covered Hurricane Katrina as it came ashore. In the 
first few days after landfall, his readers wanted to know about 
specific neighborhoods and whether they were contaminated with 
chemicals. Mark checked logs of chemical spill reports 
maintained by the Environmental Protection Agency. He knew 
enough to know he wasn't seeing a complete picture, so he filed 
a FOIA request. Months later, EPA responded to Mark by 
referring him to the same logs Mark had examined in preparing 
his FOIA request, so he quickly appealed the apparent denial.
    An OGIS mediator could have stepped in to get a more 
satisfying response from the agency, yet, more than 3 years 
have passed since Mark filed his request, and Mark still 
doesn't have answers. But he does have a Pulitzer Prize.
    Many States already have an ombudsman office to help make 
their laws work better. We appreciate Congress creating this at 
the Federal level.
    Let me note and again reiterate that Congress specifically 
placed the ombudsman in the Archives. It chose the Archives to 
ensure independence and to separate it from the Government 
lawyer who defends agencies in FOIA lawsuits. We also applaud 
appropriators in both the House and Senate who rejected the 
administration's efforts to transfer OGIS to the Justice 
Department and provided $1 million in fiscal year 2009 
specifically for the Archives to get OGIS started.
    Congress recognized that shifting these ombudsman functions 
to the Justice Department would create an inherent conflict of 
interest.
    We have three recommendations for implementing this office. 
First, OGIS should be a high-level office reporting directly to 
the Archivist. One strong model already within the Archives is 
the Information Security Oversight Office, which works well 
managing the classification system. The OGIS should be in a 
position within the Senior Executive Service and report 
directly, as I said, to the Archivist. OGIS should be 
independent of the Archive's own agency FOIA operations and, 
therefore, should exist separate from the General Counsel's 
office.
    Second, leaders of this ombudsman's office should have the 
right mix of management, legal, and mediation experience to 
imbue this office with the stature, independence, and 
reputation for fairness it needs. The OGIS director should have 
mediation experience, especially in a Federal environment. The 
OGIS leaders will require some legal training, but the director 
need not be a lawyer. OGIS leaders will have to balance these 
technical skills with a mission to primarily respond to and 
help the public.
    Third, the office should ramp up its mediation services as 
soon as possible. This office should quickly establish criteria 
for selecting cases to mediate so it maximizes its impact yet 
it is not overwhelmed. This is critically important. The office 
should bring its mediation services to main street by using the 
Internet to mediate disputes and by posting written advisory 
opinions online. These moves cut costs, improve agency 
responses through better guidance, resolve disputes faster, and 
could help make FOIA work better. Models exist, and OGIS should 
build on them.
    In conclusion, this office will require support from 
Congress through dedicated resources and active oversight and 
from the public and those in the open government community, 
including our own media coalition, to help ensure that this 
office's important mission of making FOIA work more effectively 
is achieved.
    Mr. Chairman, thank you for the opportunity to testify. I 
look forward to answering any of the committee's questions.
    [The prepared statement of Mr. Blum follows:]

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    Mr. Clay. Thank you so much, Mr. Blum.
    Ms. Mutchler, you will bat cleanup.

                  STATEMENT OF TERRY MUTCHLER

    Ms. Mutchler. Well, Mr. Chairman, thank you for the 
opportunity to come and talk to you today about open government 
here. Congressman Yarmuth, thank you as well for listening to 
this very critical testimony. I also echo each and every thing 
that was said here today, but I would be remiss if I just 
didn't tell you how much fun I am having, too. I just wanted to 
tell you that.
    My name is Terry Mutchler. I am the executive director of 
the Office of Open Records in Pennsylvania. That office is very 
similar to what the law outlines in creating OGIS, and the 
reason I am here to talk to you today about this is because I 
have dealt directly with the Freedom of Information Act from a 
lot of different angles: as a journalist for the Associated 
Press in Pennsylvania, Illinois, New Jersey, and Alaska; as an 
attorney practicing media law in Chicago; and also as an 
ombudsman in both the State of Illinois and now in Pennsylvania 
to actually create and mediate issues related to the Freedom of 
Information Act.
    I think we would all agree that secrecy is toxic to good 
government. The only way in which you can have open and honest 
government is a free flow of information exchange between 
citizens and their government, and the tool that we have that 
makes that happen is the Freedom of Information Act.
    The point of my being here today is to just try to offer 
you some examples of a blueprint, if you will, of what worked 
for me and what didn't work in both the State of Illinois and 
in Pennsylvania.
    When we started this in the State of Illinois it was called 
a Public Access Counselor, and it was an ombudsman role, and we 
didn't have a model to draw on, and so what we simply did was 
look at what the problems were with the Freedom of Information 
Act and what some basic solutions could be.
    What I discovered quickly in Illinois, and I am starting to 
quickly discover in Pennsylvania, is that there are two 
extremes that exist when you deal with the Freedom of 
Information Act, and there are, to be very blunt with you, 
there are crazy people on both sides of the open government 
equation, and I have met each and every one of them.
    On one hand you have some citizens and members of the media 
who are convinced that each and every public official is a 
criminal and the one document they are not getting is 
Watergate. They know this. But on the flip side you have public 
officials who treat this information as though it is coming 
from their own personal checkbook. Right now under FOIA until 
OGIS there was no place for a citizen to go to get help.
    When the Attorney General created this Public Access Office 
in Illinois she was criticized as pandering to the press. It 
was a press-driven issue is what people were told. However, the 
key was in the 3,000 cases that I handled in Illinois, 85 
percent of them were from citizens. The next largest group of 
people that came to us for help in mediation were public 
officials. Media brought up the last angle of that.
    We had great success in Illinois. For people that think 
that open government is just a philosophy, let me just give you 
a few brief examples that will demonstrate to you why it is 
critical that OGIS be established in a way that can be 
effective to enforce the Freedom of Information Act.
    A reporter filed a Freedom of Information Act request for 
the city of Chicago. What that reporter wanted from the school 
district in Chicago was a list that they knew existed of 
criminals who were still teaching in the Chicago public school 
system, people who were drug dealers, sex offenders, and folks 
who had been convicted of attempted murder.
    Do you know what the school district said? To release that 
would be an unwarranted invasion of personal privacy of the 
criminals. So the Office of the Attorney General became 
involved, and we mediated the result of having those documents 
released. When the Governor and the State of Illinois was 
subpoenaed and is under Federal investigation, those subpoenas 
were available under the Freedom of Information Act. There was 
no legal basis with which to hold those. The Office of the 
Attorney General became involved and we mediated and actually 
advised that those be released. The Governor's office 
disagreed, of course, and we went to court, and the open 
government angle of this won and the subpoenas had to be 
released.
    But time and time again we are not talking about esoteric 
documents. We are talking about school district budgets. We are 
talking about police reports. We are talking about 9/11 
dispatch logs that demonstrate how long it takes for police to 
respond into certain communities. This is basic information 
that is being sought.
    I can tell you that what happens with the Freedom of 
Information Act is delay, denial, and dodging. I have had 
public officials tell me directly and personally that they use 
the Freedom of Information Act as a way to block information. 
That is their goal. That is why my recommendation to this 
committee and to the National Archives in setting up this OGIS 
system is going to be in three angles.
    You have to have a director that is independent. If you do 
not have a director that is independent, you might as well go 
take the million bucks and go do something fun, because it is 
not going to work. That director has to be someone that is 
committed to the mission of open government. I would encourage 
whoever hires this director to not be afraid to hire someone 
with a media background or an attorney that has dealt with 
this, someone that will push the open government mission.
    The next thing that you have to have is a mission, and the 
mission should be to err on the side of open government with 
this.
    And the third component is the structure. As I said to 
someone earlier before this testimony, you are going to be 
inundated with complaints. You are going to be inundated with 
mediation cases. The only way that you are going to be able to 
have this work is to establish a structure that works, and that 
structure should be one that sets up in advance the intake 
process, that has a data base to be able to track these so that 
you are able to get a picture after the first year of 
statistics to see where the problem agencies are.
    To have that person, as someone else said here earlier, be 
at a senior level, and I would also tell you that putting this 
in the Department of Justice would be a grave error, not 
because of this particular administration or any administration 
that we may see, but you are going to have inherent conflicts 
of interest. You are going to have conflicts of interest that 
cannot work.
    One of the problems that we faced in Illinois being housed 
in the Office of the Attorney General, the Office of the 
Attorney General represented many State agencies, and we 
quickly came to assess that we were basically giving advice to 
our clients out of both sides of our mouth. It was kind of an 
uncomfortable position for me as an attorney, but we managed to 
get through it.
    You need someone with the reputation of the National 
Archives, someone with that independence, and that is why this 
should be driven, because the reality--and my experience leads 
me to say this--is that the Freedom of Information Act comes 
down to a philosophy. You are either pro open government or you 
are not. This law, as with any other law, can be used like 
statistics. You can use it to either shed light and to improve 
Government or you can use it to shield and block information, 
which is what we see repeatedly--at least I have seen 
repeatedly in Illinois and Pennsylvania.
    I would encourage the committee to also look at the 
paradigm set up in Connecticut. The Freedom of Information Act 
Commission there has been around for 30 years. I would put them 
as the leader in the Nation, followed by Florida and Texas, 
hopefully soon to be Pennsylvania but we need a little work on 
that.
    I would also be happy to answer any questions that you 
have, because I genuinely believe that this Government is not 
my Government and it is not yours, it is not the 
administration's, it belongs to the people sitting behind us.
    [The prepared statement of Ms. Mutchler follows:]

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    Mr. Clay. Thank you so much, Ms. Mutchler, for your 
expertise in this field and your testimony.
    I thank all of the witnesses for their testimony.
    Now we will begin the questioning period. I will start with 
Dr. Weinstein.
    The Doctrine of Sunshine in Government Initiative suggested 
that OGIS be led by a senior executive that would report 
directly to you and that the OGIS staff is experienced in 
mediation to avoid the need to resolve disputes with 
litigation. As a user of the system and now a manager of the 
system, what are your thoughts about these recommendations?
    Mr. Weinstein. Mr. Chairman, I believe that in some fashion 
or another the OGIS system is going to be reality. We are 
looking at that. I believe in that. The question then becomes 
what kind of a system and what will be the particular strengths 
of it, how will it define its tasks.
    If you don't mind, I am going to take a little detour back 
into history, because that is my profession. I am not an 
archivist by background. I first testified before one or 
another of the subcommittees of Congress on these issues back 
in 1974 or 1975. I can't quite remember which year it was. That 
is a long time in this game, if you want to say, 35 years, one 
way or another. I keep meeting people who have been in the 
business for a long period of time like that.
    One of the things, whatever their particular solutions, 
whatever their particular perspectives, one of the things that 
they point out all the time is that there was, for a period of 
years in the mid-1970's with the passage of the Freedom of 
Information Act amendments made possible by the Watergate 
events, exposures, the support for open government at the time, 
that ushered in a period of relative goodwill. People were 
working together. People were looking for what several folks on 
this panel called consensus. They were looking for a pathway 
that did not result in massive confrontations but agreed 
strategies for letting this move forward.
    I don't see how the OGIS process can work in the end 
without deep and broad scale consensus made possible by the 
efforts to consult widespread consultation among all of the 
various players in this process.
    What does that mean? It means that we cannot return, Mr. 
Chairman, at this stage in the game, to a world of FOIA 
villains and FOIA heroes. It means we are dealing with a 
process, and that process, one of the first things that amazed 
many of us involved in it, is how it seemed to be more useful 
for business people than it did even for some of the purposes 
that others had brought to it.
    I would say that we should start by basically looking into 
the process of how we are communicating with those on the other 
side of the issue.
    It goes without saying that the administration prefers that 
this process be located in the Justice Department. The Congress 
obviously prefers that the process be located in NARA. If we 
are mandated to do that, we will do it and will do a good job 
of it. But this is something that I hope can happen with the 
greatest measure of consultation and dialog, because it is a 
spirit we are after, it is an attitude, and that is where the 
victory can come.
    Mr. Clay. Thank you so much for that response.
    Mr. Blanton, I realize the restraints that Mr. Weinstein is 
under, but I am from Missouri, and let me use the bluntest 
terms that I know. We know what this administration thinks 
about the rule of law. We know what they think about our 
Constitution and particularly what they think about the FOIA 
law. As they say in Missouri, they could care less than what 
the little bird left on the branch.
    So I am going to ask you, the Open Government Act clearly 
placed OGIS at the National Archives. Can you tell the 
committee why your group advocated for placing OGIS at the 
Archives?
    Mr. Blanton. Mr. Chairman, as the Congress real clearly 
said, there is a conflict of interest that this function is at 
Justice. The Congress looked around, and this was bipartisan 
authors of this legislation. This was overwhelming approval by 
the committees and ultimately unanimously by the Congress.
    National Archives is a highly respected institution. All 
too often I think National Archives feels like an orphan child. 
It gets beat up by the White House, as it did on this very 
testimony that was being submitted to your subcommittee at this 
hearing today. I don't think that the National Archives that I 
have worked with in a collegial fashion for probably two or 
three decades now is the voice that you are hearing in this 
formal testimony, because the National Archives that I know 
tries to serve the public, tries to help the public, sees 
itself as providing essential information and essential 
evidence to the American people and empowering us.
    That is the institution that the Congress picked to make 
this function, because requesters could go there, find an 
independent voice, find the help they need to mediate disputes, 
and there were classic examples of institutions like the 
Information Security Oversight Office that other witnesses 
pointed to that should be a great model.
    Now, it is true that office, the Information Security 
Office, has about four times as much money as has been 
appropriated for OGIS, probably has five times as many staff as 
OGIS will likely be able to come up with, and has a 30-year 
history of effectiveness, and largely because of the quality of 
the leadership that came to that office and the standing of 
those individuals, and--and I would echo what Ms. Mutchler 
said--because those individuals understood that secrecy is a 
two-edged sword. Too much secrecy is bad for Government's 
process, and that the only way you protect the real secrets is 
by letting the maximum amount of the other stuff out. If that 
is the kind of director we can get for OGIS I think we win. We 
all win. Government, too.
    Mr. Clay. Thank you so much.
    Yes, Dr. Weinstein, please respond.
    Mr. Weinstein. Thank you.
    I have great respect for Mr. Blanton and for his work, but, 
by God, I have just as great respect for the work of my 
colleagues at the National Archives in, for example, releasing 
classified materials and declassifying them and releasing them. 
By the count of our Director of ISU, we have released, since I 
became Archivist of the United States, over 4.5 million pages 
of previously classified material. That doesn't come from 
people who have no commitment to the mission.
    I know also under my supervision we rejected the notion of 
secret agreements, which I found, too, when I became Archivist. 
We rejected that notion. We rejected the notion of reclassified 
materials.
    We have a track record, Mr. Chairman, and I want to defend 
that track record, but whatever the issues may be at this 
particular moment on this particular bill, there is a broader 
record and, by and large, I think we have behaved very 
honorably.
    Mr. Blanton. I agree, Mr. Chairman.
    Mr. Clay. I do, too, and I don't think anyone at this 
hearing is calling into question the Archives' commitment to 
open government or yours, so please don't misinterpret that. No 
one is attacking the National Archives here.
    Mr. Blanton. In fact, we are praising.
    Mr. Clay. That is not what I have heard.
    Mr. Blanton. Yes.
    Mr. Clay. Let me go to my colleague please from Kentucky, 
Mr. Yarmuth.
    Mr. Yarmuth. Thank you, Mr. Chairman.
    Once again, I thank all of you for your testimony.
    One of the issues here clearly is compliance. That is what 
several of you have mentioned, the problem with ensuring 
compliance, and the Office of OGIS is not necessarily going to 
be able to enforce FOIA laws. So I will pose the question. It 
seems to me that you all mentioned the independence. The one 
thing that is absolutely essential if OGIS is going to meet any 
of its objectives is to maintain absolute credibility, because 
unless it is totally credible then its value as an ombudsman is 
limited.
    There was a report issued. I think, Ms. McDermott, you 
mentioned the same report that the Justice Department did on 
the compliance and the performance of the various agencies. 
There was a report or document issued by the Coalition of 
Journalists for Open Government back in July, and it had 
actually some pretty critical comments to make about the 
Justice Department report, itself. It called it at one point a 
rose-colored Justice report, gives credit in some places where 
it isn't due, questioned the methodology, and so forth. You are 
familiar with that report, obviously?
    Ms. McDermott. Yes.
    Mr. Yarmuth. First of all, would you agree with the 
assessment of the Coalition of Journalists that the report of 
the Justice Department was flawed? You can comment on that. And 
then I guess the followup is: if that is the case, isn't it 
kind of a prima facie case that OGIS should not be operated 
within the Department of Justice?
    Ms. McDermott. Absolutely. Let me say first that the 
Department of Justice does do very good guidance to the 
agencies through FOIA posts, does a good training, it 
cooperates with nonprofit organizations that do training. So 
what they do, they do well. But they don't enforce FOIA. They 
don't ensure compliance with FOIA.
    Yes, that report was a travesty. The National Security 
Archive also did a report about that. Both found that they 
mislead, they obscured the facts, they didn't fully report. It 
is a very confusing report to read, because there is so little 
data and they draw these grand conclusions. But, again, in 
fairness to them, the Executive order really did not have any 
accountability or compliance built in.
    Again, the Justice Department was given responsibility for 
issuing guidance and doing this report. The report is terrible. 
I agree. And I agree with you that it does argue and OIP's 
history argues for this office not being there. They have not 
had responsibility, statutorily, for ensuring compliance, and 
they have not done so. They will specifically say that is not 
their job.
    So it needs to be somewhere, and I think OIP has statutory 
responsibilities that it does meet and that do serve important 
functions, and there are new reporting requirements in the law 
that will be theirs and that will aid in the Office of 
Government Information Services and will aid Congress and the 
President, but they are different obligations and the Office of 
Information Privacy and Department of Justice in general have 
not taken that responsibility.
    As with the backlog for the mediation and all that, I 
think, while there is not a basic conflict of interest in that, 
it is just not something that they have done or that they have 
been willing to do or that they have shown any interest in 
doing.
    Mr. Yarmuth. Mr. Blum, did you want to comment?
    Mr. Blum. Can I jump in here? I think that report that you 
mentioned from the Coalition of Journalists for Open Government 
is critical. I think it was called an opportunity lost. I think 
that is a very accurate assessment. If you look at the FOIA 
backlogs, the number of FOIA requests dropped 20 percent over 
the 9-year period that it looked at. The staffing was reduced 
by 10 percent. At the same time, the backlog tripled and the 
cost for process in each request jumped 79 percent. That is 
what the CJOG study showed for the agencies that it looked at. 
That is a huge opportunity lost.
    We need to continue those kinds of analyses and assessment. 
The Justice Department at this point has no authority to 
provide these kind of mediation services, does not do these 
kind of assessments and analyses that we would very much like 
to see OGIS do so that we can start targeting the kind of 
improvements that agencies can make if they know about it.
    Do we know about best practices? Which agencies are doing 
it well? Which agencies are doing poorly? That is something 
that OGIS could examine. The Archives has the independence, it 
has the consistent mission with the presumption of disclosure 
that exists within the FOIA statute, and it already has a model 
with this Information Security Oversight Office. So it makes a 
tremendous amount of sense to start this off within the 
Archives and see how it works. In a couple years see what is 
working, what is not working. We have specific recommendations 
about which cases it can select to be very effective. You might 
want to adjust those after a while.
    We should be starting this off. I think we are all very 
excited among the media group to see this actually get enacted 
into statute. We want to see it implemented. At the same time, 
it has to be adequately funded.
    Mr. Clay. Thank you. We will begin a second round of 
questions. I will start with Ms. McDermott.
    You state that there is no linkage between the OGIS and 
FOIA officers. Why is this necessary for effective 
implementation of OGIS? What must the National Archives do to 
make this link?
    Ms. McDermott. Well, I think that the problem is in the 
statute. I think the office was created and given this 
responsibility for reviewing the policies and procedures and 
compliance, and then the chief FOIA officers that were created 
by the Executive order were just sort of incorporated without a 
lot of thought, I'm afraid, by us or by the drafters about how 
those two work together.
    The chief FOIA office, I think I agree with Tom that they 
have a key role to play at all levels, in the mediation part, 
in the ensuring compliance part. They specifically have that 
responsibility. But they don't report to OGIS. The statute has 
them reporting on a separate line completely within their 
agency and to the Attorney General.
    I think that if Congress takes seriously and if NARA takes 
seriously the responsibility of OGIS for reviewing and making 
recommendations and in that sense ensuring compliance, that we 
can't have these two separate tracks.
    One of the things that I suggest is the possibility of a 
Chief FOIA Officer Council headed up at the Archives to build a 
structure for regular communication between and among the 
Office of Government Information Services and these agency 
personnel. They should continue to report to the Attorney 
General, but they also need to have some sort of direct 
communication, and the Office of Government Information 
Services needs to have a direct responsibility for receiving 
that information, and I would argue that down the road they 
need to have some direct authority for issuing regulations or 
something to help the chief FOIA officers achieve or accomplish 
their missions within their agencies.
    Mr. Clay. Thank you so much.
    Mr. Blum, do you envision OGIS acting as the referee or 
mediator in disputed FOIA requests to expedite in a timely 
manner the requests in order to avoid the backlog such as you 
cited a reporter who requested information and they did not 
receive it? How could OGIS have impacted that situation?
    Mr. Blum. Well, I think that OGIS has two basic 
responsibilities: mediate individual cases where it can make a 
difference, and to make the agency respond faster. And for a 
requester, they are not getting answers, and so they are not 
clear if their non-response is because the agency just hasn't 
gotten to the request yet.
    Some agencies will spend 4 years and then they will call 
you up. I had this experience myself with one agency. They 
called me up 4 years after my request went in and they said, 
are you still interested in this? I said I sure am. I have 
changed jobs twice, but I sure am interested. Now, what was my 
request and why was there such a delay? I said, are you getting 
pushback? Their response was, well, you are just next.
    So we don't know are we getting folks behind the curtain 
saying we don't want to give this to you so we are going to 
kind of twist you around, or is there just problems because the 
FOIA process works slowly?
    So an independent mediator can help break through some of 
the logjams on the individual cases, but at the same time, by 
looking at agency FOIA reports and seeing how FOIA is operating 
at agencies, seeing which agencies are doing a good job. I have 
heard the Defense Department has a very good, at least, 
processing system, so you get a response back quickly. You 
might not like the response, but you are getting a response 
back quickly. So that is going to help you and it is going to 
help increase trust in the system, and then it will help 
improve over time how agencies are processing their requests.
    Hopefully by putting their advisory opinions online they 
can then--you know, agencies can then see them and have some 
good standards and some good guidance for dealing with their 
particular situation. And then you are going to drive good 
decisions earlier in the FOIA response process at agencies. 
That is ultimately what is going to make OGIS so effective.
    Mr. Clay. Let me ask a panel-wide question. We will start 
with Ms. Mutchler. In your opinion, is it critical that the 
OGIS report directly to the Archivist and be an SES-level 
position, and, if so, why?
    Ms. Mutchler. I do agree with that, Mr. Chairman. I think 
that you need someone at the senior level that is going to have 
some punch here with what they are doing, someone that is not 
going to be at a low-level position that is not going to be 
listened to or is not going to carry their weight that is 
necessary.
    For me, I believe that the National Archives would be one 
appropriate place for this, and it is not so much that it is 
the reputation of the Archives and what not as critically just 
keeping it out of the Department of Justice. Again, that is 
not, per se, geared toward a particular administration, but all 
you need to do is to look at the memo that was issued by John 
Ashcroft, the Attorney General at the time, saying that when 
you receive a FOIA request in essence--I mean, this is a 
paraphrase, but the heart of it was find a way to deny it. And 
if it is a close call, err on the side of denying it.
    That, in and of itself, I think speaks volumes. For me, it 
underscores that you need it in a place that has credibility. 
Credibility is key here. I believe that the National Archives 
seems to be a very appropriate place for that. And it needs to 
be at the highest level, reporting directly to the Archivist.
    Mr. Clay. Thank you for your response.
    Mr. Blum, do you have an opinion?
    Mr. Blum. We did make that recommendation exactly, that it 
be at a high level and an SES position reporting to the 
Archivist, precisely because you want an entity that is going 
to be separate from the Archives or any agency's own FOIA 
operations so that it has the independence from that processing 
so that when it gives a decision that may err on the side of 
the agency, the requester knows that it is credible and it has 
the independence and the integrity of that.
    You also want a high-level position that will have the 
reputation and the respect of other agencies so that it can, 
when it makes a decision in a mediation, carry weight with the 
agency.
    So I think it is critically important that it be at a high 
level, that it report to the Archivist, that it be independent 
from, obviously, the Justice Department, and from within the 
Archive's own FOIA operation.
    Mr. Clay. Thank you for that response.
    Ms. McDermott.
    Ms. McDermott. I absolutely agree. You said yourself that 
in order for this office to be effective it is going to have to 
have credibility, and in order for it to have credibility the 
person that has this is going to have to be at least at a level 
comparable with the chief FOIA officers in the agencies, and if 
it is a person who is buried fairly deeply in the NARA 
structure, that is not going to happen.
    They also need, I would agree, independence within NARA. 
And also just from a purely practical level, if we want to 
attract the best possible candidates for this extraordinarily 
important office, one that is going to have a real impact on 
the future of FOIA and its effectiveness to the average 
citizen, it needs to be at a senior enough level that you 
really do attract senior level, highly competent individuals to 
apply for this position.
    Mr. Clay. Very good point. Thank you.
    Mr. Blanton.
    Mr. Blanton. I totally agree with that, and I think one of 
the attractions for this position is that whoever is appointed 
to this job come March 2009 is immediately going to be invited 
on a nice junket to Norway to meet all the other information 
commissioners around the world in what will be their sixth 
annual Conference of Information Commissioners, and see what 
kind of lessons can be drawn from all those amazing, very 
different experiences.
    I think it is a vote of real respect. I would go beyond 
what Ms. Mutchler said about to keep it out of the Department 
of Justice. I think also this designation from the requester 
community and from the Congress for the National Archives to 
host this office is a profound vote of confidence and respect 
in the National Archives as an independent institution. It just 
needs to take this and run with it.
    Mr. Clay. Thank you. Norway sounds tempting. Maybe I need 
to dust off my resume.
    Dr. Weinstein.
    Mr. Weinstein. Mr. Chairman, I don't know if I am running 
with anything, but let me run my mouth off a little bit on some 
of this, after all these provocative and appreciative comments.
    I get the sense from most of my colleagues at the Archives 
that they would not find unwelcome the idea of a senior level 
appointment of this kind and the Archivist playing this role. 
Neither would I, I suppose. It follows what I have been looking 
for when I have been stressing perhaps in my fundamental 
naivete we've managed.
    The fact is that goodwill is going to help this process. We 
have seen that. I have seen it very directly in connection with 
several other committees, as you know, which have been working 
with the administration to try to negotiate different results 
with some success. We have been involved in a few of those.
    I would like to strongly urge you and your colleagues, 
whatever you may decide about the senior officer of this 
process, to see if it would not be possible, even at this late 
date in the game, to sit down privately with representatives of 
the majority and minority on the Hill, the White House, we are 
happy to play a role if we can, to try and get this process 
back on track so it becomes a consensus project. In fact, I 
think that would help it tremendously down the road. But as for 
what the committee does, we serve at the pleasure of Congress 
and we will just await what happens.
    Thank you.
    Mr. Clay. Thank you for your suggestion.
    Now I would like to recognize my friend.
    Mr. Yarmuth. Thank you, Mr. Chairman.
    I want to pursue this issue. Ms. Mutchler, you talked about 
the memo that was released when it was discovered by Attorney 
General Ashcroft, and there is a temptation, I think, maybe 
among many of us who don't appreciate this administration's 
attitude toward transparency, to say, well, 125 days from now 
things are going to be fine, we do not have to worry about 
this. It will obviously be better. But I suspect that all of 
you have experiences with other units of government, both maybe 
Federal and elsewhere, that would illustrate that resistance to 
this type of transparency is not limited to the Ashcroft 
Justice Department.
    Ms. Mutchler. I would agree with that, Congressman. What I 
have seen is that it is the one issue that goes across party 
lines, to be honest.
    Mr. Yarmuth. I am trying to be bipartisan.
    Ms. Mutchler. Exactly. And that is another reason why I 
think that, in my experience, what I have seen is that 
Democrats and Republicans, alike, have used the Freedom of 
Information Act as a way to deny information to citizens. That 
is why I stress in my remarks that keeping this out of Justice 
does not, per se, speak to this administration in and of 
itself.
    You know, you need to protect this and shield this and have 
this in an agency such as archives that has a reputation for 
fairness, that, as my colleague said, is a vote of confidence, 
and no one should believe that this is one particular party or 
administration over another.
    What I have found is--and I am still looking to the answer 
as to why--people in public bodies start with the premise that 
the record is closed and not available, and that is a critical 
difference that needs to be changed, and it is why I underscore 
that you need a director that will have the independence to 
push to create that presumption of openness, no matter who the 
requester is and no matter what political powerhouse is holding 
the record. It is the only way it is going to work.
    Mr. Yarmuth. Mr. Blanton, you seem to be chomping at the 
bit there to say something.
    Mr. Blanton. Well, as you probably know, Congressman 
Yarmuth, President Johnson had to be dragged kicking and 
screaming into even signing the bill. I think if Bill Moyers, 
his press secretary, hadn't set him up with some nasty 
newspaper editors calling in and saying you had better sign 
this, it never would have happened. It is a bipartisan problem. 
All bureaucracies across world history resist this kind of 
openness and accountability. I think one of the geniuses of the 
American system is that we count on it, we rely on it, it is a 
basis.
    I would just make one point, though. The current 
administration produced that Executive order 2 years ago. I 
just wanted to give a compliment to President Bush, which is a 
rare thing when approval ratings are running 28 percent, but he 
did an Executive order on Freedom of Information improvement to 
make it more citizen centered back 2 years ago.
    [Hearing closed off record.]
    [Whereupon, at 3:23 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]

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