[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                               before the

                     CENSUS, AND NATIONAL ARCHIVES

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES


                             SECOND SESSION


                             MARCH 18, 2010


                           Serial No. 111-84


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

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/

61-936                    WASHINGTON : 2010
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                   EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania      DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York         DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       JOHN J. DUNCAN, Jr., Tennessee
WM. LACY CLAY, Missouri              MICHAEL R. TURNER, Ohio
DIANE E. WATSON, California          LYNN A. WESTMORELAND, Georgia
STEPHEN F. LYNCH, Massachusetts      PATRICK T. McHENRY, North Carolina
JIM COOPER, Tennessee                BRIAN P. BILBRAY, California
GERALD E. CONNOLLY, Virginia         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               JEFF FLAKE, Arizona
MARCY KAPTUR, Ohio                   JEFF FORTENBERRY, Nebraska
    Columbia                         AARON SCHOCK, Illinois
DANNY K. DAVIS, Illinois             ANH ``JOSEPH'' CAO, Louisiana
PAUL W. HODES, New Hampshire
JUDY CHU, California

                      Ron Stroman, Staff Director
                Michael McCarthy, Deputy Staff Director
                      Carla Hultberg, Chief Clerk
                  Larry Brady, Minority Staff Director

   Subcommittee on Information Policy, Census, and National Archives

                   WM. LACY CLAY, Missouri, Chairman
CAROLYN B. MALONEY, New York         PATRICK T. McHENRY, North Carolina
    Columbia                         JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois             JASON CHAFFETZ, Utah
JUDY CHU, California
                     Darryl Piggee, Staff Director

                            C O N T E N T S

Hearing held on March 18, 2010...................................     1
Statement of:
    Pustay, Melanie, Director, Office of Information Policy, U.S. 
      Department of Justice; Miriam Nisbet, Director, Office of 
      Government Information Services, U.S. National Archives and 
      Records Administration; Larry F. Gottesman, National 
      Freedom of Information Act Officer, Office of Environmental 
      Information, U.S. Environmental Protection Agency; and 
      Valerie C. Melvin, Director, Information Management and 
      Human Capital Issues, U.S. Government Accountability Office    16
        Gottesman, Larry F.......................................    41
        Melvin, Valerie C........................................    50
        Nisbet, Miriam...........................................    32
        Pustay, Melanie..........................................    16
    Sobel, David, senior counsel, Electronic Frontier Foundation; 
      Sarah Cohen, Knight professor of journalism, Duke 
      University, on behalf of Sunshine in Government Initiative; 
      Adina H. Rosenbaum, director, freedom of information 
      clearinghouse, Public Citizen; David Cuillier, assistant 
      professor, University of Arizona School of Journalism; and 
      Tom Fitton, president, Judicial Watch......................    72
        Cohen, Sarah.............................................    86
        Cuillier, David..........................................   106
        Fitton, Tom..............................................   116
        Rosenbaum, Adina H.......................................    98
        Sobel, David.............................................    72
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
        Prepared statement of Mary Ellen Callahan................     8
    Cohen, Sarah, Knight professor of journalism, Duke 
      University, on behalf of Sunshine in Government Initiative, 
      prepared statement of......................................    88
    Cuillier, David, assistant professor, University of Arizona 
      School of Journalism, prepared statement of................   108
    Fitton, Tom, president, Judicial Watch, prepared statement of   118
    Gottesman, Larry F., National Freedom of Information Act 
      Officer, Office of Environmental Information, U.S. 
      Environmental Protection Agency, prepared statement of.....    43
    Melvin, Valerie C., Director, Information Management and 
      Human Capital Issues, U.S. Government Accountability 
      Office, prepared statement of..............................    52
    Nisbet, Miriam, Director, Office of Government Information 
      Services, U.S. National Archives and Records 
      Administration, prepared statement of......................    34
    Pustay, Melanie, Director, Office of Information Policy, U.S. 
      Department of Justice, prepared statement of...............    20
    Rosenbaum, Adina H., director, freedom of information 
      clearinghouse, Public Citizen, prepared statement of.......   100
    Sobel, David, senior counsel, Electronic Frontier Foundation, 
      prepared statement of......................................    75



                        THURSDAY, MARCH 18, 2010

                  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 2:43 p.m. in 
room 2154, Rayburn House Office Building, Hon. Wm. Lacy Clay 
(chairman of the subcommittee) presiding.
    Present: Representatives Clay, Norton, Chu, and McHenry.
    Staff present: Darryl Piggee, staff director/counsel; 
Anthony Clark and Frank Davis, professional staff members; 
Yvette Cravins, counsel; Jean Gosa, clerk; and Charisma 
Williams, staff assistant; John Cuaderes, minority deputy staff 
director; Rob Borden, minority general counsel; Adam Fromm, 
minority chief clerk and Member liaison; Stephanie Genco, 
minority press secretary and communications liaison; Mark 
Marin, minority professional staff member; Charles Phillips, 
minority chief counsel for policy; and Jonathan Skladany, 
minority counsel.
    Mr. Clay. The subcommittee will come to order.
    Good afternoon and welcome to the Information Policy, 
Census, and National Archives Subcommittee.
    Without objection, the Chair and ranking 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 submit a written statement or 
extraneous material for the record.
    And welcome to today's oversight hearing on the 
administration of the Freedom of Information Act [FOIA], held 
during Sunshine Week, which is focused on educating the public 
on the importance of open government.
    The purpose of today's hearing is to examine how agencies 
process and respond to FOIA requests and to receive a status 
report on current FOIA trends.
    The FOIA is not perfect. In the 40 years since the bill's 
enactment, Congress has continually reexamined and strengthened 
it. This reflects the changing nature of government 
information, but it also reflects the changing nature of the 
public's relationship with the Government.
    In his own FOIA memorandum on his first full day in office, 
President Obama made it clear that executive branch agencies 
should administer the FOIA with the presumption of openness, 
cooperating with the public to respond to requests for 
information promptly. And on Tuesday, the President reiterated 
his commitment to transparency, participation and 
accountability in a statement on Sunshine Week.
    Another recent change also has the potential to improve the 
FOIA process. In 2007, Congress created and last year President 
Obama stood up the Office of Government Information Services 
[OGIS] at the National Archives. OGIS's mediation and training 
efforts will have a positive impact on FOIA.
    We look forward to today's hearing to learning more about 
the state of the FOIA and about the trends toward improving 
services, increasing access, and making Government more 
    I want to make it clear that this is an oversight hearing 
on the administration of the FOIA and not a forum for any party 
to advance a pending litigation matter. My staff has spoken 
with all of the witnesses and all of the witnesses have agreed 
not to discuss any matters that currently are pending before 
any court. This hearing is not the appropriate venue to try to 
advance your case.
    Witnesses are again asked to abide by the agreement that 
they made not to discuss pending court matters. I want to make 
sure that there is no confusion about this issue.
    I now yield to the gentlewoman from--no, I now yield to the 
distinguished ranking member, Mr. McHenry of North Carolina. 
Hopefully Mr. McHenry will have an opening statement.
    [The prepared statement of Hon. Wm. Lacy Clay follows:]

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    Mr. McHenry. I do have an opening statement. Thank you, Mr. 
Chairman, and sorry for my tardiness.
    Thank you all for being here today. This is certainly an 
important issue the American people should be concerned about, 
about access to their Government. And we want to make sure that 
policies and procedures are being followed appropriately and 
that openness and accountability that we all seek from our 
Government is in fact taking place.
    And so, Chairman Clay, I certainly appreciate your holding 
this timely and very important hearing. It is the primary 
responsibility of this committee to provide rigorous bipartisan 
oversight of the decisionmaking and spending of our Federal 
Government. And it is also the responsibility of this committee 
to ensure that ordinary citizens have the access to Federal 
records so that they, too, may hold our Government accountable 
for its actions.
    The Freedom of Information Act [FOIA], was designed to do 
just that by providing our citizenry with the legal means to 
access Government information. On the President's first full 
day in office, he issued an official memorandum instructing 
executive departments and agencies to make more information 
public through FOIA as part of his administration's commitment 
to ushering in ``a new era of open government.''
    The President's memo also specifically directed the 
Attorney General, Eric Holder, to issue new FOIA guidelines to 
each agency head. But the administration's message of openness 
and transparency has not translated into concrete improvements 
with FOIA. The memo's guidance also does not seem to have been 
communicated effectively or enforced throughout the Federal 
    A report recently, on Sunday, by a private research group, 
National Security Archive, found that after nearly 14 months, 
only 13 of 19 agencies that were audited appear to have taken 
any real steps to implement the administration's order. 
Specifically, only four agencies including Holder's own Justice 
Department, show both an increase in approved FOIA requests and 
decrease in denials.
    The audit also found ``ancient'' requests dating as far 
back as 18 years that are still pending in the FOIA system. 
Additionally, 35 agencies reported that they had no internal 
documents showing how or whether the new FOIA policies are 
being implemented. It was truly troubling to find that the 
typically secretive Treasury Department and the SEC are 
actually on that list. As a member of the Financial Services 
Committee, just like the chairman, that is of a particular 
policy concern on the Hill as well.
    In light of their role in the allocation of billions of 
dollars in taxpayer money through the TARP Program and the 
distressed banks, and the GSEs, Fannie Mae and Freddie Mac, we 
should also be very alarmed to hear this about the Treasury 
    While in many cases, the handling of FOIA requests has not 
changed, in others it has actually gotten worse. The Associated 
Press conducted its own review of FOIA reports filed by 17 
major agencies and found that the use of nearly every one of 
the FOIA law's nine exemptions to withhold information from the 
public actually rose in the fiscal year 2009.
    For example, one FOIA exemption allows the Government to 
hide records that detail its internal decisionmaking. The 
President specifically instructed Federal agencies to stop 
using that exemption so frequently, but his message appears to 
have been ignored. Major agencies cited that exemption at least 
70,779 times during fiscal year 2009, up from 47,395 times 
during President Bush's final year in office, according to the 
annual FOIA reports filed by Federal agencies.
    It is clear that President Obama's instructions have been 
widely disregarded, but the administration still maintains that 
it has been making ``clear progress'' in turning around the 
FOIA process at Federal agencies that have often been adverse 
to public disclosures.
    Progress may, indeed, be slow, but over a year into his 
administration, the American people should be seeing more 
transparency than this, especially from agencies that are the 
most spendthrift with their tax dollars.
    It is my hope that our witnesses in this first panel will 
be able to shed some light on this over-reliance on certain 
FOIA exemptions and the delay in implementing the President's 
    Thank you, Mr. Chairman, for your leadership of this 
committee and your work across the aisle and even within your 
own caucus to make sure that we have good oversight over this 
administration and the Government generally.
    Thank you.
    Mr. Clay. Thank you, Mr. McHenry, for that opening 
    If there are no additional opening statements, the 
subcommittee will now receive testimony from the witnesses 
before us today.
    I would now like to introduce our first panel, but before I 
do that, I would like to also welcome our newest panel member 
here, our newest committee member here, Ms. Judy Chu from the 
great State of California, who took Ms. Watson's place. So 
thank you for being willing to serve, Ms. Chu. I appreciate it.
    Our first witness will be Ms. Melanie Pustay, Director of 
the Office of Information Policy [OIP], at the U.S. Department 
of Justice. Ms. Pustay started in the Department in 1983 and 
became Director of OIP in 2007.
    She manages the Department's responsibilities related to 
FOIA, including ensuring compliance with the FOIA, adjudicating 
all Department appeals from denials under the FOIA, and 
handling FOIA litigation matters. She has received the Attorney 
General's Distinguished Service Award for her role in providing 
legal advice, guidance and assistance on records disclosure 
    She graduated from American University's Washington College 
of Law and received her B.A. from George Mason University.
    Our next witness is Ms. Miriam Nisbet, the Director of the 
Office of Government Information Services at the National 
Archives and Records Administration. She serves as the Federal 
FOIA ombudsman, providing mediation services to resolve 
disputes between FOIA requesters and administrative agencies.
    Previously, she was Special Counsel for Information Policy 
at the National Archives and Deputy Director of the Office of 
Information and Privacy at the Department of Justice.
    Ms. Nisbet received a B.A. degree from the University of 
North Carolina at Chapel Hill and a J.D. degree from the 
University's School of Law. She is a Tarheel.
    Mr. McHenry. And if I may interject there, though they are 
not in the NCAA tournament this year, at least they got a win 
against William & Mary.
    Mr. Clay. Well, the ACC is well represented. OK? 
    Our next witness is Ms. Mary Ellen Callahan, Chief Privacy 
and FOIA Officer at the U.S. Department of Homeland Security. 
She could not be with us today. Without objection, her written 
statement will be entered into the record. In addition, Ms. 
Callahan has agreed to respond to Members' questions for the 
    [The prepared statement of Ms. Callahan follows:]

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    Mr. Clay. And after Ms. Nisbet, we will hear from Mr. Larry 
F. Gottesman, the National Freedom of Information Officer for 
the U.S. Environmental Protection Agency. He is responsible for 
the day to day operations of the Agency's National FOIA 
Program, providing policy direction on Agency-wide FOIA 
matters, and guidance to the Agency's FOIA officers and 
    During his tenure, the Agency has reduced its FOIA backlog 
by more than 96 percent. Previously, he was an Attorney at the 
U.S. Department of Labor, providing legal counsel and policy 
advice on FOIA, the Privacy Act, Federal Records Act, Federal 
Advisory Committee Act, Administrative Procedures Act, and 
congressional oversight requests.
    Thank you for being here.
    Our next witness will be Ms. Valerie C. Melvin, Director of 
Information Management and Human Capital Issues within the U.S. 
Government Accountability Office's Information Technology Team. 
She is primarily responsible for studies of issues concerning 
health information technology, IT human capital, and access to 
government information.
    Ms. Melvin graduated from the University of Maryland with a 
B.S. degree in business administration and a master's degree in 
management information systems. And I must say that she picked 
a great college.
    Welcome back. She is a certified government financial 
    And I thank all of our witnesses for appearing today and 
look forward to their testimony.
    It is the policy of the Oversight and Government Reform 
Committee to swear in our witnesses before they testify.
    Would you all please stand and raise your right hands?
    [Witnesses sworn.]
    Mr. Clay. Thank you. You may be seated. And let the record 
reflect that the witnesses answered in the affirmative.
    I ask that each of the witnesses 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 
    Ms. Pustay, please begin with your opening statement.



    Ms. Pustay. Good afternoon, Mr. Chairman and Ranking Member 
McHenry and members of the subcommittee. I am pleased to be 
here this afternoon to address the subject of the Freedom of 
Information Act and the efforts of the Department of Justice to 
implement the President's memorandum on the FOIA, as well as 
the Attorney General's FOIA guidelines.
    As the lead Federal agency responsible for implementation 
of the FOIA, we at the Department of Justice are especially 
committed to encouraging compliance with the act by all 
agencies, and to fulfilling President Obama's goal of making 
his administration the most open and transparent in history.
    The Attorney General issued his new FOIA guidelines 1 year 
ago on March 19th during Sunshine Week. The new FOIA guidelines 
address the presumption of openness that the President called 
for in his FOIA memoranda, the necessity for agencies to create 
and maintain an effective system for responding to requests, 
and the need for agencies to proactively and promptly make 
information available to the Government.
    The guidelines discussed the critical role that is played 
by agency Chief FOIA Officers and they stressed that improving 
FOIA performance requires their active participation. The 
Attorney General called on all agency Chief FOIA Officers to 
review their agency's FOIA administration each year, and then 
to report to the Department of Justice on the steps taken to 
achieve improved transparency. These reports, which were just 
completed for the very first time this week, will serve as the 
means by which each agency will be fully accountable for its 
FOIA administration.
    My office, the Department's Office of Information Policy, 
has been actively engaged in a variety of initiatives to inform 
and educate the agency personnel on the new commitment to open 
government. Just 2 days after the President issued his FOIA 
memorandum, OIP sent initial guidance to agencies informing 
them of the significance of the President's memorandum and 
advising them to immediately begin applying the presumption of 
disclosure to all decisions regarding the FOIA.
    Then, after the Attorney General issued his FOIA 
guidelines, OIP held a Government-wide training conference 
which was filled to capacity with over 500 agency personnel 
attending. To further assist agencies in implementing the new 
guidelines, OIP issued extensive written guidance which we 
posted publicly on FOIA Post. Significantly, OIP provided 
agencies with concrete steps to use and approaches to follow in 
applying the presumption of openness. OIP described ways to 
apply the foreseeable harm standard and discussed the factors 
to consider in making discretionary releases.
    Now, beyond these principles of applicable to responding to 
individual FOIA requests, OIP also provided guidance to 
agencies on achieving transparency in new ways. Further, OIP 
emphasized the need to work cooperatively with requesters and 
to make timely disclosures of information.
    Last, OIP discussed the key role to be played by those 
agency Chief FOIA Offices and we encouraged FOIA professionals 
to work closely with those officials.
    OIP has also included a discussion of the President's and 
Attorney General's memoranda in the 2009 edition of our 
Department of Justice Guide to the FOIA. This book is a 
comprehensive reference volume on the FOIA. It is compiled by 
OIP every 2 years, and it is also available online. You can see 
that this year we chose sunshine yellow for the cover, which we 
thought was very fitting.
    In addition to issuing written guidelines and guidance to 
agencies, OIP has conducted numerous additional agency-specific 
training sessions specifically focused on the new transparency 
initiative. We regularly provide training to agency personnel 
on aspects of the FOIA and those training programs now all 
include sessions on the new FOIA guidelines.
    OIP has also reached out to the public and to the FOIA 
requester community. OIP hosted a requester roundtable over the 
summer where we invited any interested members of the FOIA 
requester community to meet with OIP and to share their ideas 
for improving FOIA administration. There have been numerous 
followup sessions and continued dialog with the requester 
community, which has been very productive.
    In direct response to concerns raised by the requester 
community concerning difficulties they had in reaching agency 
personnel, just this month on March 4th, OIP issued guidance to 
all agency personnel, emphasizing the need for good 
communication with FOIA requesters and requiring agencies to 
provide an agency point of contact to all requesters, as well 
as to take a number of other steps designed to improve 
communication with requesters.
    These simple steps have the potential to go a long way to 
imbuing a spirit of cooperation into the FOIA process as the 
President has called for. These training programs and requester 
outreach activities will be ongoing in the months and years 
    Now, I am pleased today to be testifying with Miriam 
Nisbet, the Director of the Office of Government Information 
Services. Our two offices began collaborating immediately. 
Resolution of disputes before they reach litigation is a goal 
shared by both our offices. Given that shared interest, OIP has 
teamed with OGIS to help educate agency personnel on methods 
they can employ to resolve disputes.
    In upcoming months, OIP will be conducting an extensive 
review of those agency Chief FOIA Officer reports that were 
just completed. The items required to be addressed by each 
Chief FOIA Officer are directly tied to the important 
transparency principles enunciated by the President and the 
Attorney General in their FOIA memoranda. OIP will make an 
assessment of where agencies stand.
    In keeping with the President's and the Attorney General's 
call for all agencies to increase their use of technology, the 
Department required Chief FOIA Officers to report on their 
agency's use of technology in the administration of the FOIA. 
This is the very first time such data has been collected across 
the Government.
    Mr. Clay. The witness' time has expired. Would you like to 
sum up?
    Ms. Pustay. Yes. I have lots of news to report for you.
    Mr. Clay. I know.
    Ms. Pustay. Looking ahead, in addition to our review of the 
Chief FOIA Officer reports, we plan to continue our outreach on 
the important issue of transparency, which will include 
additional training and further guidance to agencies, as well 
as one on one assistance and continued outreach to requesters.
    As I have stated previously, we are very committed to 
achieving the President's goal of improved transparency.
    Thank you.
    [The prepared statement of Ms. Pustay follows:]

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    Mr. Clay. Thank you so much for your testimony, Ms. Pustay.
    Ms. Nisbet, you are up.


    Ms. Nisbet. Thank you. Good afternoon, Mr. Chairman, 
Ranking Member McHenry and members of the subcommittee.
    Thank you for the opportunity to appear today during 
Sunshine Week to tell you more about the Office of Government 
Information Services [OGIS]. We are honored to be part of a 
Government-wide effort to improve the administration of FOIA.
    As you know, our Office was created through the Open 
Government Act of 2007 and we opened our doors just 6 months 
ago, in September 2009. Since then, we have been working to 
fulfill our congressional mandates.
    One of those is to review Federal agencies' FOIA policies, 
procedures and compliance so that we may make policy 
recommendations to Congress and the President. The second 
mandate is to offer mediation services to resolve FOIA 
disputes. In addition, we have been serving as a FOIA ombudsman 
soliciting assistance from Federal agencies and the public to 
improve the FOIA process generally.
    The right of the public to access information from its 
government is fundamental. FOIA is a strong mechanism allowing 
citizens to exercise that right, and in the more than 40 years 
since FOIA was first enacted, Congress has consistently worked 
to make it stronger. We hope that OGIS will be an important 
component of FOIA's strengthening process, even though we are a 
somewhat small part, with a staff of six, to reach across the 
entire executive branch.
    The U.S. Government received more than 600,000 FOIA 
requests in fiscal year 2008. We are, of course, just compiling 
the numbers for fiscal year 2009. Only 1.5 percent of those 
resulted in an administrative appeal and only 0.05 percent of 
the total requests were litigated. By those measures, the law 
works reasonably well.
    But the cost of those 321 lawsuits to the requesters, to 
the agencies, for the courts and passed along to the public are 
significant. OGIS has been working closely with the Office of 
Information Policy at the Justice Department, as well as with 
other Federal agencies and FOIA requesters and advocates to 
develop solutions to help FOIA work more effectively and 
efficiently. For example, our experience confirms that simple 
communication between a FOIA requester and an agency FOIA 
professional can go a long way in preventing disputes.
    To enhance communication and provide mediation services, 
something that has not been done before in the administrative 
process, we are taking five different paths. One has been to 
work with agency FOIA public liaisons whose role it is to 
resolve disputes. In fact, as Melanie mentioned, our first 
dispute resolution skills training for FOIA public liaisons is 
set for next Tuesday, and we had more than 60 RSVP requests in 
the few hours after announcing the event to fill 30 slots. We 
have 130 on our waiting list, so we know that there is a strong 
    Second, we are developing a pool of trained mediators who 
will formally mediate cases. Third, OGIS staff members are 
currently informally mediating cases and have resolved 84 of 
the 110 cases brought to us since our doors opened last 
September. Fourth, we are exploring whether online dispute 
resolution may be a viable avenue, allowing us to use 
technology in the same way as many commercial entities do.
    Finally, we are utilizing existing alternative dispute 
resolution programs [ADR], within agencies to work with their 
FOIA professionals. Specifically, we have met with 
representatives from the Departments of Defense, Interior and 
Veterans Affairs, as well as the Federal Energy Regulatory 
Commission who is co-hosting next Tuesday's event with OGIS and 
Justice to set up pilot FOIA and ADR mediation programs.
    To fulfill the second prong of the Office's mission, OGIS 
is also reviewing agency FOIA policy, procedures and practice 
to determine areas of the law that may need attention. As 
directed by the law, we will report on agencies' compliance to 
Congress and the President at the end of the fiscal year. We 
are already seeing much greater attention throughout the 
agencies to the importance of improving FOIA performance as a 
result of the President's memoranda on openness in FOIA, the 
Attorney General's efforts and OMB's Open Government Directive.
    Finally, as you know, many people have referred to OGIS as 
the FOIA ombudsman. That is a term that was first coined by 
Senators Leahy and Cornyn. As an impartial office devoted to 
FOIA, we have embraced this informal role as well. OGIS has 
engaged in regular outreach through presentations, informal 
meetings, press briefings and through its Web site.
    Finally, there is no question but there is a role for the 
Office of Government Information Services to assist Federal 
agencies and members of the public, to resolve disputes, to 
learn where improvement can be made, and generally to better 
navigate the FOIA process. There is a lot of work ahead of us 
yet, but in 6 short months, agencies and the public have 
expressed a deep appreciation for the services we provide.
    With all of this setting the state in the Office's early 
days, we look forward to becoming instrumental in making FOIA 
as strong and effective a tool in public oversight as Congress 
    Thank you.
    [The prepared statement of Ms. Nisbet follows:]

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    Mr. Clay. Thank you so much for that testimony.
    Mr. Gottesman, you are up.


    Mr. Gottesman. Thank you. Good afternoon, Chairman Clay, 
Ranking Member McHenry and members of the subcommittee. I am 
pleased to appear before you today to discuss EPA's FOIA 
program during Sunshine Week.
    Let me assure you that EPA is committed to the letter and 
spirit of the Open Government Act of 2007, the administration's 
open government and transparency goals. EPA recognizes that 
emerging technologies create new opportunities for improving 
the FOIA processes throughout the Federal sector, and the 
Agency continues to collaborate with other Federal agencies in 
this regard.
    Administrator Jackson issued a memorandum to all employees 
on April 23, 2009 that communicated her commitment to 
transparency in all of EPA's operations. The Administrator said 
that, as President Obama stated, the FOIA should be 
administered with a clear presumption of openness and that all 
Agency personnel should ensure that this principle of openness 
is applied.
    Administrator Jackson also stated that in accordance with 
guidance issued by Attorney General Holder, EPA offices should 
exercise their discretion in favor of disclosing documents 
whenever possible under FOIA and take steps to make information 
publicly available on the Agency's Web site without waiting for 
a request.
    I would like to take a few minutes to explain how EPA is 
addressing the FOIA backlog embracing the mandates of greater 
transparency. First and foremost, the Agency has worked very 
hard to reduce its backlog of FOIA requests. In July 2001, 
there were 23,514 overdue FOIA requests. EPA formed a task 
force and began aggressive steps to address the situation. The 
backlog started to decrease.
    In 2006, the Agency committed to reducing its backlog to 
not more than 10 percent of new requests received in any fiscal 
year. EPA surpassed this aggressive milestone the very next 
year and continues to meet it every year thereafter. In fact, 
at the end of fiscal year 2009, EPA's backlog was just 332 
requests, or just slightly over 3 percent of all incoming 
requests. The Agency has also significantly reduced its overdue 
    The Agency embraced the mandate for greater transparency. 
EPA made data bases available through its Web site because of 
information frequently requested through FOIA. For example, 
EPA's Office of Pesticide Programs completely redesigned its 
electronic FOIA reading room to make tens of thousands of 
highly sought after pesticide science and regulatory records 
publicly available without the need to file a FOIA request. The 
Office established a dual component electronic reading room by 
making documents available on its FOIA Web site. Other parts of 
the Agency are exploring opportunities to use similar 
technology to proactively disclose records.
    In conclusion, EPA is proud of its accomplishments and 
continues to look for other opportunities to proactively 
disclose information to the public and reduce the need to file 
a FOIA request.
    I would be pleased to answer any questions from the 
    [The prepared statement of Mr. Gottesman follows:]

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    Mr. Clay. Thank you so much for that testimony.
    Ms. Melvin, you may proceed.


    Ms. Melvin. Thank you, Mr. Chairman, Ranking Member McHenry 
and members of the subcommittee.
    I appreciate the opportunity to participate in today's 
hearing on implementation of the Freedom of Information Act. As 
you have noted, this important statute establishes that Federal 
agencies must provide access to Government information so that 
the public can learn about Government operations and decisions.
    Given its significance, the Congress included reporting 
requirements in the act to allow its implementation to be 
monitored. As you know, under the act, agencies are to develop 
annual reports providing numerous statistics on their FOIA 
processing. Since 2001, we have conducted reviews that draw on 
these annual reports to describe the status of reported 
implementation and any observable trends. My statement today 
briefly discusses our previous work in this area, as well as 
selected changes in the FOIA landscape resulting from 
legislation, policy and guidance.
    In our earlier work, we examined the annual reports from 
major agencies, generally noting increases in FOIA requests 
received and processed and impending requests carried over from 
1 year to the next. We also examined agency improvement plans 
developed in response to a 2005 Executive order that was aimed 
at improving FOIA implementation and included a major focus on 
reducing backlogs of overdue requests.
    We found that the agency improvement plans under review 
mostly included goals and timetables as required by the 
Executive order. Also, in later reporting on agency efforts to 
reduce backlogs, we found signs of progress in certain agencies 
as of September 2007. However, we could not present a complete 
Government-wide picture because agencies varied in how and what 
they were tracking as part of their improvement plans.
    The Open Government Act of 2007, which was passed in 
December 2007, amended FOIA in several ways, including setting 
up the FOIA Ombudsman Office within the National Archives and 
Records Administration, as has already been discussed. 
Regarding the statistics required in the annual reports, the 
act introduced several changes, including additional statistics 
on timeliness and backlog.
    For instance, agencies must break down their response times 
in much greater detail, that is, how many requests were 
responded to within the first 20 days; how many in the next 20 
days, and so on in 20-day increments up to 200 days, and in 
100-day increments up to 400 days, and finally those that took 
longer than 400 days. These new requirements were first 
reflected in the annual reports for fiscal year 2008.
    These annual reports also reflected a significant change in 
guidance that the Justice Department provided to agencies on 
preparing the reports. Specifically, Justice's May 2008 
guidance directed agencies to omit from their statistics 
Privacy Act requests which had previously been included. In a 
Privacy Act request, the requester asked for information on 
himself or herself. This change had a major impact on the 
statistics for certain agencies such as the Social Security 
Administration, whose reported requests dropped by more than 18 
million in fiscal year 2008.
    In the immediate, these changes to the reported statistics 
make year to year comparisons with earlier years problematic. 
However, in the future the increased details should help 
provide a clearer picture of FOIA implementation at individual 
agencies and Government-wide.
    Further, this type of information will be important in 
assessing the effect on FOIA processes of plans that are called 
for in the recent Open Government Directive issued by OMB. Each 
agency's plan, due in April, is to describe measures to 
strengthen this FOIA program, including milestones for reducing 
any pending backlog of outstanding FOIA requests by at least 10 
percent each year.
    Overall, the increased reporting requirements should allow 
greater insight into FOIA program performance, which is 
important for agencies, for Congress and the public to ensure 
improved implementation of this important statute.
    Mr. Chairman, this completes my prepared statement. I would 
be pleased to respond to any questions that you or other 
members of the subcommittee may have.
    [The prepared statement of Ms. Melvin follows:]

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    Mr. Clay. Thank you so much, Ms. Melvin.
    And I thank the entire panel for their testimony.
    We will begin the 5-minute questioning period with our 
newest Member, Ms. Chu.
    You may proceed.
    Ms. Chu. Thank you, Mr. Chair.
    So there were 600,000 requests of the U.S. Government, 
according to Ms. Nisbet. I was wondering how many of them or 
what percentage of them were denied.
    Ms. Nisbet. Those were the figures for fiscal year 2008, 
and in terms of the denials, I am going to ask my colleague 
here, Ms. Pustay, to answer if I may, because she has the 
reporting on all of those figures.
    Ms. Pustay. In terms of releases of information for last 
year, for 2009, we had a significant increase from 2009 to 2008 
in the number of requests where information was released either 
in full or in part. And that, to me, is one of our first 
measures of improvement, of significant improvement across the 
Government in implementing the Attorney General's FOIA 
    Ms. Chu. So in other words, you are trying to get a handle 
on the statistics now, but you don't know how many of them were 
denied at this point?
    Ms. Pustay. I don't have memorized how many were denied, 
but we have done a comparison for the key agencies between 
fiscal year 2008 and fiscal year 2009 and releases in full or 
in part were up in this past fiscal year, which is an 
indication of greater focus on transparency as a result of the 
    Ms. Chu. And a change in policy.
    Ms. Pustay. Yes, exactly.
    Ms. Chu. And has there been a change in the backlog? Do you 
know what?
    Ms. Pustay. Yes, it is another really wonderful indicator. 
I think backlogs has always been a very vexing issue for 
agencies and the public alike. And again, by looking at the key 
agencies, backlogs have gone down almost by half. It is really 
a dramatic number. This number I did write down, from 125,000 
to about 69,000, so almost a 50 percent reduction in backlog 
requests from 2009 versus 2008. So the idea that the focus that 
we have had on backlogs and improving timeliness, again this 
past year, as a result of the guidelines, has really taken hold 
in agencies.
    Ms. Chu. That is excellent.
    Given the current presumption of openness, has the Justice 
Department reviewed any agency denials of FOIA requests that 
the Bush Justice Department defended in court? And are there 
any cases where the Justice Department has decided to reverse 
the decision on those denials?
    Ms. Pustay. Once the guidelines were issued last year, 
there was a review conducted and of course that has been an 
ongoing process of all pending litigation cases to identify any 
case where there was good potential for additional releases of 
information as a result of application of the new guidelines. 
And there certainly have been cases where additional 
information was disclosed as a result of the re-review.
    We had on Monday a Sunshine Week event at the Department of 
Justice, and we had some speakers highlighting significant 
accomplishments at their agencies. And the U.S. Trade 
Representative was one of those speakers. And one of the 
specific things they highlighted was the discretionary release 
that they made in litigation after the guidelines were issued 
of never before released trade negotiation documents. So it was 
really, I thought, a very nice example of additional disclosure 
that was made.
    Ms. Chu. Very good.
    Let me talk about a concern that was raised to me from the 
Asian American Legal Defense and Education Fund. They had some 
concerns. I mean, I think this policy of openness is great, but 
they had concerns about whether private information from census 
forms could be released in response to a FOIA request.
    Can you assure me that there is no reason for them to be 
concerned about this information coming out in a FOIA request?
    Ms. Pustay. Right.
    Ms. Chu. And how is the privacy of those particular forms 
protected, which is an especially sensitive subject right now?
    Ms. Pustay. Right at this moment in time. We just filled 
out our form at home.
    This is a really excellent question because the challenge 
with implementing the FOIA and increasing openness is that 
agencies have to take into account legitimate interests that 
need protection from public disclosure, and personal privacy is 
obviously at the top of the list of interest that needs 
    And so the key to successful implementation of FOIA is 
properly balancing the public's interest in transparency, with 
individuals' interests in protecting personal privacy. And that 
is what agency officials do every day and that is a big part of 
what we give training on is how to conduct privacy analysis and 
make sure that privacy is being protected.
    Now, specifically with census forms, though, in addition to 
privacy protection, which would be very readily and easily 
applied to the people who fill out a census form, there is also 
a statute that gives protection to information gathered under 
the census. So there would be an additional even stronger way 
to protect that information. You have a statute that protects 
it. You also have overlapping protection of a privacy 
exemption. So it is very, very strongly and easily protectable.
    Ms. Chu. Thank you.
    Mr. Clay. Thank you so much.
    Mr. McHenry.
    Mr. McHenry. Thank you, Mr. Chairman.
    Thank you all for your testimony. I certainly appreciate 
you being here.
    Ms. Pustay, how much is this decline in the backlog of FOIA 
requests natural at the end of administrations?
    Ms. Pustay. Oh, I don't think it is natural at all. I 
think, in fact, the opposite would be true. I think that to 
have a reduction in backlogs so early in a new administration 
is quite remarkable. And to have a nearly 50 percent reduction 
in backlog is just quite a good accomplishment. We are not done 
with our work on reducing backlogs, and certainly all these 
elements of transparency, especially I work with agencies to 
encourage them to make improvements on. We still have work to 
be done. There is no doubt about it. But to have done this much 
on backlog reduction in 1 year I think is quite a big 
accomplishment. And I directly tie it to our focus on this as 
part of the new transparency initiatives.
    Mr. McHenry. OK.
    Ms. Melvin, with the GAO, has there been research on what 
is sort of the natural ebb and flow of these requests?
    Ms. Melvin. We have not looked at the requests recently. 
Our work primarily was between 2001, for the annual reports, it 
was 2002 and 2006. In that timeframe, we did see increases in 
the backlogs up through 2006, although we did see a decrease, 
if you will, in terms of the rate of increase in the backlogs 
that were pending, the pending backlog, I should say. But since 
then, we have not seen more recent numbers relative to the 
actual numbers for backlog at this time.
    Mr. McHenry. Ms. Nisbet, your office was created by 
legislation in 2007 and you opened I believe in 2009.
    Ms. Nisbet. September 2009, just about 6 months.
    Mr. McHenry. OK. So we are still early.
    Ms. Nisbet. Yes.
    Mr. McHenry. Where are you in this process of getting up 
and running?
    Ms. Nisbet. Well, we now have our full complement of six 
staff members, so that is great. Our sixth member arrived just 
a few weeks ago. We are already handling cases and have been 
handling cases for a number of months now. We are seeing quite 
an increase in our backlog. I am sorry, not our backlog. Oh, we 
don't have a backlog. [Laughter.]
    In our caseload. We have in 2010 already more than twice as 
many cases as came to us in the last few months of 2009. Now, 
granted, a lot of people didn't know we existed and that is one 
reason we really appreciate the attention of this subcommittee 
to our office. It helps to let people know that our services 
are out there and that we are available.
    Mr. McHenry. So have you begun the process of mediation 
yet? Or where are you in that process?
    Ms. Nisbet. We are handling cases ourselves in what we 
would call an informal way. We are putting together a pool of 
trained mediators. They will be people who are both with the 
Government and also outside the Government so that we have a 
pool of neutral trained mediators to handle cases. So far, we 
are doing pretty well just in using our staff, but we do know 
that there will be cases that really require much more time in 
terms of hours and days, and we will need to actually devote 
people just to working on those cases, but we are getting ready 
for that.
    Mr. McHenry. OK. So when does mediation begin? Do you have 
your first case?
    Ms. Nisbet. We would be ready to start just about any time. 
We do have a number of people who are sort of ready and 
standing and ready to go, but we have not had a case yet that 
really requires that.
    Mr. McHenry. OK.
    Ms. Nisbet. So far, we have been able to do it with our own 
staff as opposed to hiring trained mediators to come in and 
handle cases on an ad hoc basis.
    Mr. McHenry. And in the 6-months you have been up and 
running how many requests have you had?
    Ms. Nisbet. We have had about 110 cases. We have resolved 
84 of those. We do still have some right now that are pending 
that we are working on. But so far, we have had a very good 
reception from the agencies that we have worked with. And we 
are finding that we are able to handle them pretty well so far.
    Mr. McHenry. And who are you intending to help? Just so 
people understand.
    Ms. Nisbet. Well, we are intending to help both FOIA 
requesters and the agencies to whom they have made requests in 
overcoming obstacles that may be keeping the request from being 
fulfilled in a timely fashion, or because of substantive 
reasons. We have had requests mostly for help from FOIA 
requesters so far, but let me tell you, we also have had some 
requests for assistance from agency personnel as well who have 
asked us to help intervene when they have had a particularly 
difficult problem with a requester.
    So our intention is to do all of that. I mentioned that we 
are going to be offering starting next week dispute resolution 
skills training. That is something we are doing with the 
Justice Department, with the help of the Federal Energy 
Regulatory Commission. They have a very good ADR, alternative 
dispute resolution program.
    We are doing skills training for FOIA personnel, Government 
personnel, to help them better be able to work with requesters 
and really just improve customer service. So in that respect, 
we have some training that is going to be targeted directly for 
Government personnel to help them.
    Mr. McHenry. Very good. Thank you. Thank you for your 
    Ms. Nisbet. Thank you.
    Mr. Clay. Thank you, Mr. McHenry.
    Ms. Melvin, do you see any trends emerging over the last 
year with FOIA requests or with the agencies?
    Ms. Melvin. The last time that we did a report that 
actually talked about trends was in 2008. At that time, as I 
mentioned earlier, we did see some increase in the pending 
requests, although that increase was slowing. We also had seen 
an increase in the number of requests that were being received 
by the agencies, and that also was flattening out a bit.
    Since then, we have not done a study. At that time, it was 
at a point when the guidance was changing and we felt that we 
needed to give some time to the agencies to really implement 
new requirements, if you will, in terms of numbers and 
statistics that they needed to really assess and report on 
their progress. That being the case, I believe that we are now 
in the process of actually putting together plans to try to 
look at this again, but that would have been the last time that 
we saw such a trend.
    Mr. Clay. Thank you.
    Mr. Gottesman, we don't often get to hear directly from 
someone so directly involved in the FOIA process at an agency. 
What are some of the misconceptions you think the public has 
about the work of FOIA officers?
    Mr. Gottesman. The work of FOIA officers. I think some of 
the misperceptions that we see is really not necessarily our 
role as a FOIA officer in helping process and helping create 
policies to be more transparent. What we see more and more as 
an agency is individuals who think that the open Government and 
the President's policies and the Attorney General's guidelines 
means everybody gets everything they want no matter what it is.
    And we have seen in the beginning lots of requests that the 
Agency protected information because it was confidential 
business information or exemption for material. Now, can we 
please have it because the President has said give us 
    And we see people like that who just read about it in the 
newspaper and just feel that it shouldn't, just because it is 
commercial business information, if it is covered by a Trade 
Secrets Act, we want it; we should get it.
    And the Agency has made great strides to try to work with 
those requesters.
    Mr. Clay. Give me an example of what the Agency has been 
doing to reduce the backlog. I mean, I think it is very 
impressive that you reduced it at such a dramatic rate. And how 
has that improved services to requesters?
    Mr. Gottesman. We looked at our process. We looked at 
available data bases. A good example a little while ago is if 
you want to export a car to certain foreign countries, you need 
to get a certificate of conformity from EPA. It is a printout, 
literally a document that is on a data base. We worked with the 
office that maintains the data base and actually the data base 
on our Web site so individuals who need to get this information 
don't have to wait 3 or 4 days or a week or 2 weeks to get the 
information. With any internet access, they can go into our 
data base and within 5 or 10 seconds print out the certificates 
they need. Of course, for those individuals who don't have 
Internet access, of course we will still make that available to 
    At EPA, we get a lot of requests, probably almost half the 
requests we get are what we call due diligence requests, where 
someone is doing a real estate transaction and they need to 
know what does EPA know about my property. We are working with 
our program offices and hopefully we will have it deployed next 
month or so where individuals can go on our Web site, put an 
address in, and find out what EPA knows about your property.
    As it turns out, almost half our requests are no record 
responses because people want us to have no information about 
your property, no adverse information. So if you look at our 
requests, half are almost no record responses, and that is what 
the public wants. But instead of having to make a request, they 
will be able to get that information on their own when they 
want, anytime they want.
    Mr. Clay. Thank you for that response.
    Ms. Nisbet, I can imagine that for an individual FOIA 
requester after a lengthy process of not getting access to the 
information they seek, your mediation services must be very 
welcome. Can you give us a sense of the impact of mediation on 
agency FOIA officers? And do they view the process as positive?
    Ms. Nisbet. Mr. Chairman, I will go with the end of your 
question first because I would like to reiterate that we have 
gotten a really good strong response from agencies who seem to 
really welcome our services.
    One way that the 2007 amendments to FOIA envisioned not 
only that mediation would be provided not only by our office, 
but there would be a statutorily recognized role for the FOIA 
public liaisons at the agencies to resolve disputes. We believe 
that with that added specific responsibility for the FOIA 
public liaisons throughout the agencies, working with us, 
working with the Justice Department, emphasizing the importance 
of preventing disputes, to head them off, to improve 
communication and to have good FOIA customer service from the 
very beginning, that will definitely have an impact.
    Thank you.
    Mr. Clay. Let me also ask you, one of OGIS's 
responsibilities is to recommend policy changes to Congress and 
the President to improve the administration of FOIA. When do 
you think you will have enough experience and data to make your 
initial recommendations to us?
    Ms. Nisbet. We believe, sir, that we will be able to make 
at least a report on what we are seeing within the first year, 
by the end of fiscal year 2010. So we are aiming for having a 
report to you all by the end of September this year with at 
least what we are seeing now, and some recommendations.
    Mr. Clay. Very good. I look forward to receiving it. Thank 
    Ms. Nisbet. Thank you.
    Mr. Clay. Ms. Pustay, the Sunshine in Government initiative 
has found that agencies have cited at least 250 statutes on the 
books to deny information under exemption three of the FOIA 
which prohibits release of information that is specifically 
exempted from disclosure by another statute.
    A recent American University study concluded that just 153 
statutes qualify under exemption three, suggesting that 40 
percent of the statutes claimed by agencies are invalid. To 
avoid further litigation, what else could the administration 
and Congress do to rein in the use of this exemption? Do you 
have any opinions about that?
    Ms. Pustay. I have actually a couple of reactions to it. 
First of all, I think to put transparency on this issue, in 
fact we have compiled a chart of all exemption three statutes 
that have been found to qualify by the courts as exemption 
three statutes, and have published that on our Web site so that 
agencies have a ready spot to go to see statutes that have been 
found to qualify.
    But I guess I would question part of the premise of that 
question because until a court rules on the validity of an 
exemption three statute, all you have is presumption or guess 
as to whether something is a proper exemption through statute 
or not. Ultimately, a court decides what is a proper statute. 
That is why what we have done is compile the statutes that 
courts have found to qualify.
    And then, of course, the FOIA was just recently amended to 
require that any statute passed by Congress that is an attempt 
to be an exemption three statute specifically says that is what 
it is, and cites to exemption three. So that should make it a 
lot easier for agencies to spot these statutes in the future.
    Mr. Clay. Thank you for that response.
    We have no further questions for this panel. Let me thank 
you all for your indulgence, for your time today, and this 
panel is dismissed. Thank you.
    I now would like to introduce our second panel. And our 
first witness will be Mr. David Sobel, senior counsel at the 
Electronic Frontier Foundation, which he directs the FOIA 
Litigation for Accountable Government Project. He has handled 
numerous cases seeking the disclosure of Government documents 
on privacy. In 2006, Mr. Sobel was inducted into the First 
Amendment Center's National FOIA Hall of Fame.
    He was formerly counsel to the National Security Archive 
and co-founder of the Electronic Privacy Information Center. He 
is a graduate of the University of Michigan and the University 
of Florida College of Law.
    Our next witness is Ms. Sarah Cohen, the Knight Professor 
of Journalism at the Sanford School, Duke University. Ms. Cohen 
worked for 15 years as a reporter and editor, most recently for 
the Washington Post. She shared the 2002 Pulitzer Prize for 
investigative reporting for the Post series, the District's 
Lost Children, and that was quite a series, which uncovered 
failures by child welfare agencies that contributed to dozens 
of children's deaths.
    She has taught journalism courses at the University of 
Maryland and is the author of Numbers in the Newsroom: Using 
Math and Statistics in News.
    Ms. Cohen earned her undergraduate degree in economics at 
the University of North Carolina-Chapel Hill, and her master's 
degree in journalism at the University of Maryland.
    Does that make you a Terp or a Tarheel?
    Ms. Cohen. Tarheel, of course.
    Mr. Clay. OK. [Laughter.]
    After Ms. Cohen, we will hear from Ms. Adina Rosenbaum, an 
attorney at Public Citizen Litigation Group. Many of her cases 
involve access to records under the FOIA. She also serves as 
the director of the Freedom of Information Clearinghouse, 
providing assistance to journalists, academic organizations and 
others seeking information from the Government under FOIA and 
other open government laws.
    Ms. Rosenbaum received her J.D. from New York University 
School of Law and her undergraduate degree from Harvard 
    And welcome.
    Our next witness will be Dr. David Cuillier, an assistant 
professor at the University of Arizona School of Journalism. He 
is chairman of the Society of Professional Journalists' 
National Freedom of Information Committee. He gathered public 
records as a government reporter and city editor for a dozen 
years at daily newspapers in the Pacific Northwest.
    Mr. Cuillier was awarded the 2007 Nafziger White 
Dissertation Award by the Association for Education in 
Journalism and Mass Communication for the top dissertation in 
the field. He received his B.A. from Western Washington 
University and his M.A. and Ph.D. from Washington State 
    And welcome to the committee.
    Our final witness today will be Mr. Thomas Fitton, the 
President of Judicial Watch, a conservative nonpartisan 
educational foundation that promotes transparency, 
accountability and integrity in government, politics and the 
law. He has 20 years of experience in conservative public 
policy. Previously, he worked for America's Voice, National 
Empowerment Television, and was a talk radio and television 
host and analyst.
    And welcome, Mr. Fitton.
    And let me thank all of our witnesses for appearing today. 
I look forward to their testimony.
    It is the policy of the subcommittee to swear in all 
witnesses before they testify. Would you please stand and raise 
your right hands?
    [Witnesses sworn.]
    Mr. Clay. Thank you, and you may be seated.
    Let the record reflect that the witnesses answered in the 
    And before we go to the witnesses' testimony, I want to 
reiterate that we will hold the witnesses to their agreements 
not to discuss any pending court matters. And I ask that each 
of the witnesses 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. Sobel, please begin with your opening statement.


                    STATEMENT OF DAVID SOBEL

    Mr. Sobel. I would like to thank you, Mr. Chairman and the 
ranking committee member, Mr. McHenry, for granting me the 
opportunity to appear before the subcommittee and share my 
views on implementation of Freedom of Information Act policy 
throughout the Government.
    As senior counsel to the Electronic Frontier Foundation, I 
am engaged in submitting and litigating requests for 
information dealing with a fairly wide range of agency 
information concerning technology policy and how Government use 
of new technologies potentially impacts individual rights.
    In addition to my work on behalf of EFF, I also serve on 
the Steering Committee of the OpenTheGovernment.org Coalition, 
and I have also represented a fairly wide variety of public 
interest and news media organizations during the course of 25 
years of litigating cases.
    Given that time span, I have had experience litigating 
cases challenging withholding under both Democratic and 
Republican administrations, so I feel that I have a fairly 
broad view of the issue, and I would like to emphasize the fact 
that I have never seen this as a partisan issue. I think we 
have seen some of the rhetoric from different administrations 
kind of ebb and flow, but primarily the issue is one of 
bureaucratic culture and limited resources. And I think those 
are the two really most significant factors in how, from the 
requester perspective, the Freedom of Information Act actually 
    Certainly in assessing trends over the past year, I think 
everyone must acknowledge the very positive statements that 
have emanated from the highest levels of the administration, 
starting with the President on January 21st of last year, 
Attorney General Holder's memorandum which was issued a year 
ago tomorrow, and as Ms. Pustay referenced, the more specific 
policy guidance that was issued by her office, the Office of 
Information Policy. I think all of those statements have been 
very positive and there is not much to fault in any of the 
things that have been said. I think the right message has been 
    The problem is that for one reason or another that message 
does not seem to have filtered down to the front lines. I know 
that the whole panel is going to speak about issues that the 
requester confronts. I would like to speak specifically about 
issues that arise in the litigation context. And for that 
reason, I would like to focus on experiences that I have had 
that indicate that front line litigating attorneys in the 
Department of Justice have not received the message that there 
is a new pro-transparency policy.
    At the time that the President took office, EFF had about a 
half dozen pending cases in the Federal courts. These cases had 
arisen first under the Bush administration, and I thought that 
these cases were interesting opportunities to see what effect, 
if any, the newly articulated policy might have. In all of 
those cases, once the President made his statement and the 
Attorney General issued his memorandum, we suggested to the DOJ 
attorneys handling the cases that perhaps the cases should be 
stayed to give the agencies an opportunity to consider whether 
the new policy would have an impact on the disclosures at issue 
in that case.
    Not only did the DOJ attorneys in all but one of those 
cases reject the suggestion, but they actively opposed motions 
that we filed with the courts to stay the cases to allow for 
that reconsideration.
    Once the policies were in fact considered to whatever 
extent they were, we were able to discern no real difference, 
which is to say that despite the emphasis that the President 
and Attorney General put on agencies making discretionary 
releases of information, we saw virtually no additional 
information released in our cases after the new policy went 
into effect.
    I have cited in my written testimony one specific example 
in one of our cases of information that was withheld, in that 
case by the FBI, under circumstances where we were subsequently 
able to look at the actual information that was withheld, 
comparing a released version of the documents with the withheld 
version. And I would refer you to my testimony for the details 
of that, which is detailed on my organization's Web site with a 
side by side comparison of documents.
    I think on this point, in terms of litigation posture, it 
is important to emphasize that one of the key points of 
Attorney General Holder's memo was the claim that the Justice 
Department's position with respect to litigating and defending 
cases was going to change. He specifically rescinded the policy 
that had previously been established by Attorney General 
Ashcroft and suggested that the Justice Department was going to 
be taking a harder look at cases when it came to deciding 
whether or not to defend.
    As I say, I have not seen any change, but we would like to 
be in a position where we can really specifically quantify 
whether there has been a change. So we have suggested to top 
Justice Department officials that the Department consider 
releasing a list of cases that they have declined to defend. 
This would give us concrete information. This would be the 
transparent way to see whether that policy is in effect having 
an impact.
    Mr. Clay. You can go ahead and summarize.
    Mr. Sobel. The Justice Department has refused that request, 
and I would urge the committee to consider asking the 
Department for that information, a list of cases that they have 
declined to defend under the Holder policy.
    I just want to emphasize one point that hasn't been raised 
yet today. I would like to note that in the Senate the other 
day, Senators Leahy and Cornyn introduced new legislation, the 
Faster FOIA Act, to establish an advisory committee to look at 
the problem of FOIA processing delays. I think it is past time 
that issue be studied and I would urge this subcommittee to 
look at that issue as well.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Sobel follows:]

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    Mr. Clay. Thank you for your testimony and suggestions.
    Ms. Cohen, you may proceed, 5 minutes.

                    STATEMENT OF SARAH COHEN

    Ms. Cohen. Thank you, Chairman Clay, Ranking Member McHenry 
and members of the subcommittee. I also want to thank you for 
the opportunity to talk about FOIA today on behalf of the 
Sunshine in Government Initiative. And I would also like to 
thank you for your continued interest in the ability of the 
public to access important Federal records and information.
    In 15 years as an investigative reporter and editor, mainly 
at the Washington Post, I frequently depended on the law to 
gain access to important administrative and program records. 
Last year, I joined the faculty of Duke University as its 
Knight Chair in journalism. And while I am still close to daily 
journalism, I am now more free to report on my own experiences 
and those of colleagues who are still in the business.
    Mr. Chairman, we have seen some improvements in 
transparency in government, but in general, the FOIA process 
has remained largely unchanged. President Obama's day one 
transparency initiative raised the hopes of those who depend on 
FOIA to inform citizens of the activities of Government taken 
in the public's name and with the public's money.
    There have been some improvements, starting with the 
President's decision to voluntarily release White House visitor 
logs, largely as a sign to other agencies and to ease the path 
to requesting financial disclosures. Some reporters are saying 
that some agencies, in particular EPA, are opening up records 
without requiring FOIAs anymore. But based on my own experience 
and reports from other journalists and others who work with 
public records, transparency for the purpose of Government 
accountability has changed very little.
    I would like to suggest four areas in which the FOIA 
doesn't work the way it was intended, and hasn't for the 
generation in which I have been a reporter. The first is that 
delays seriously inhibit FOIA's promise of disclosure. The 
ability to wait out a FOIA request remains the most glaring 
power imbalance between requesters and agencies and releases 
are often irrelevant by the time they are completed.
    One reporter in Texas recently has not received documents 
promised from an agency for more than a year. And I would like 
to mention that I have never received a FOIA request in the 
time required by law.
    In 1996, Congress recognized that administrative records 
held in electronic form had become one of the most difficult 
sticking points in the law, and enacted several changes, but 
few agencies have kept the promise of those reforms. Agencies 
are required to post online frequently requested records, yet 
the correspondence of Treasury Secretary Geithner, details on 
reconstruction spending in Iraq and Afghanistan, and original 
nursing home inspection reports often can't be accessed on the 
    In addition, the required tools to help requesters, such as 
indexes of information systems, are obsolete or poorly 
documented. And finally, a growing number of agencies are 
refusing to release information in the requested data form, 
even though the 1996 amendments require agencies to make them 
available in the form requested when they exist that way.
    Third, when Congress mandates transparency, agencies only 
sometimes comply. Congress has enacted law to ensure release of 
important records on a timely basis, but those laws are 
sometimes twisted to do just the opposite, and I detail several 
examples of those in my written testimony.
    And finally, requesters don't know where to turn when FOIAs 
have stalled. Few agencies make the job of Chief FOIA Officer a 
primary function and few requesters are aware of OGIS. Last 
year, for example, a reporter requested of an agency all 
correspondence regarding human trafficking. Several months 
later, he received a letter with a cost estimate to reproduce 
700 responsive documents, but he could never tell anyone how to 
proceed. Numerous phone calls and emails were never answered 
and his story eventually ran without the information that might 
have been provided in those documents. A phone call to OGIS 
might have helped, but the Office can't be expected to resolve 
every case.
    Congress could do several things to help. First, it could 
clarify the definitions of frequently requested records and ask 
agencies to review FOIA logs at least once a year for classes 
of records that should be proactively disclosed.
    Second, Congress could also build transparency into new 
laws and new computer systems. And third, Congress could 
encourage agencies to proactively release information of 
interest to the public such as agency correspondence, 
calendars, lists of political appointees, and grant audits.
    Journalists expect that the needs for records and 
transparency will sometimes conflict with other priorities such 
as personal privacy and national security, but I think most 
reporters would be happy to disagree on those substantive 
matters if the Government readily released common documents, 
reduced delays and offered a more effective path to resolution.
    Thanks for the opportunity to present these views on the 
state of FOIA.
    [The prepared statement of Ms. Cohen follows:]

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    Mr. Clay. Thank you so much, Ms. Cohen.
    Ms. Rosenbaum.


    Ms. Rosenbaum. Thank you, Mr. Chairman, Ranking Member 
McHenry and members of the subcommittee for inviting me to 
testify today. I am an attorney at Public Citizen, a nonprofit 
consumer advocacy organization, and director of Public 
Citizen's Freedom of Information Clearinghouse.
    Since its inception, Public Citizen has worked to promote 
Government transparency. Through the Clearinghouse and our 
Public Interest FOIA Clinic, we provide assistance to 
individuals and organizations seeking information under open 
Government laws. My comments today are based primarily on 
trends in processing FOIA requests that we have noticed in our 
own experience and through conversations with FOIA requesters 
over the past year.
    As has been noted already, from his first full day in 
office, President Obama has expressed a commitment to creating 
an unprecedented level of openness in Government and emphasized 
that a presumption of disclosure should apply to FOIA. We 
applaud President Obama's new policies in favor of 
    But the administration has often focused more on 
affirmative disclosure and tools for interaction between 
Government and the public than on FOIA itself, and I don't want 
to downplay the importance of proactive disclosure of records 
and particularly the usefulness of making records available on 
agency Web sites.
    At the same time, though, FOIA's request and response 
process plays an important role in ensuring that the public is 
informed about the Government's activities, and we have found 
FOIA processing to be inconsistent.
    Although I have spoken to requesters who have had better 
experiences with FOIA in the past year than in previous years, 
I have also spoken to many requesters who have faced serious 
problems accessing records. And I want to focus today on four 
categories of problems faced by requesters: persistent delays, 
communication misunderstandings, problems due to interagency 
referrals, and over-withholdings.
    First, the problem that requesters mention to us the most 
is the long amount of time it takes agencies to respond to 
requests. Although FOIA requires agencies to respond within 20 
business days, agencies often take months or even years to 
respond. Just yesterday, for example, I received a record in 
response to a FOIA request I made in July 2006.
    These sorts of delays both keep requesters from being able 
to use the records as effectively as possible, but also 
engender mistrust in the Government. Most requesters I talk to 
assume that a long delay indicates that the agency is trying to 
hide something.
    As Mr. Sobel mentioned, earlier this week, Senators Leahy 
and Cornyn introduced the Faster FOIA Act, which would 
establish a commission to study and make recommendations about 
methods to reduce delays, and we support the establishment of 
such a commission.
    Congress should also consider creating incentives for 
agencies to improve response times, such as the loss of the 
right to claim that records are exempt under the deliberative 
process privilege if the agency has not timely processed them.
    Another problem we see is breakdowns in communication 
between requesters and agencies. Over the past year, we have 
seen increased efforts by agencies to communicate with 
requesters, which is a step in the right direction. Too often, 
though, requesters in these conversations feel that they are 
being pressured into narrowing their requests. They get asked 
questions like, what is it you really want, when they feel that 
they have already stated what they really want. They want the 
records listed in their FOIA request.
    We have also heard a number of stories about FOIA requests 
being rejected based on technicalities and of organizations 
being asked to provide a burdensome amount of details to 
justify their fee waiver requests.
    In addition, interagency referrals sometimes create 
problems. When agencies have responsive records that originated 
with another agency, they generally refer those records to the 
other agency for processing. From the FOIA requester 
perspective, these records are essentially sent into a black 
    For example, last June Public Citizen sent a request to the 
U.S. Trade Representative, which released some records, but 
referred others to the Federal Reserve and the Departments of 
Treasury, Commerce, Transportation and State, some of which 
further transferred the records to sub-agencies. At each stage, 
the responsible staff member and tracking number would change 
without Public Citizen being kept up to date of those changes.
    Requesters should be able to track a referred request and 
know who in the new agency is responsible for the request. 
Agencies also should be required to process and return referred 
records quickly so as not to multiply delays. An interagency 
committee devoted to referrals should be established to develop 
mechanisms that would reduce delay and allow requesters to be 
able to follow their referred requests.
    Finally, problems persist even after agencies respond. Too 
often, records are redacted or withheld when no exemption 
applies or when no foreseeable harm would result from release. 
Continued training and emphasis on the presumption of 
disclosure is needed to combat these problems.
    Further, targeted FOIA amendments would promote Government 
transparency. For example, we believe that exemption five 
should include a presumption that older records are not 
protected under the deliberative process privilege. Targeted 
changes could make an important difference in allowing the 
public to understand its Government's activities.
    Thank you very much, and I am happy to respond to 
    [The prepared statement of Ms. Rosenbaum follows:]

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    Mr. Clay. Thank you very much, Ms. Rosenbaum.
    Professor Cuillier, you are recognized.


    Mr. Cuillier. Good afternoon, Chairman Clay, Ranking Member 
McHenry and members of the subcommittee. I appreciate the 
opportunity to address you today. I think what you are doing 
here is extremely important. And I would like to talk, if I 
may, a little about how requesters view FOIA, developing 
cultures of openness, and some ideas for maybe enhancing 
    First, the state of FOIA today. The past year has been 
refreshing, like everybody said: the President's Executive 
order, the Holder memo, the Open Government Directive, the 
initial work of OGIS has been outstanding, dispute resolution 
we hear today. That is great.
    However, like some of the others, I think the perception of 
requesters is that we are not quite there yet, and the 
administration acknowledged this just a few days ago even. In 
my written testimony, I cited dozens of studies documenting the 
problems. We have backlogs, delays, redactions that are 
extreme, exemptions applied broadly, a variety of strategies 
used to skirt FOIA, such as the state secrets privilege, 
Presidential Records Act, Privacy Act, Family Educational 
Rights and Privacy Act.
    Most journalists, frankly, don't use FOIA because of the 
frequent delays and denials. And I keep asking, but I haven't 
heard from journalists that this changed much in the past year. 
Perhaps it has, but our perception is that it hasn't yet. If 
the President were in my class, I would give him an A for 
effort, but probably a C for execution.
    However, I have to say it is unfair to expect immediate 
change. These things take time. So that is where we come to 
agency culture. As a former journalist and as a researcher in 
freedom of information at the University of Arizona, I have 
found that accessing records is often more about people than 
the law. If an agency embraces openness, then FOIA tends to 
work. If it embraces secrecy, then FOIA doesn't work.
    It is this human factor that leads me to teach journalists 
the interpersonal dynamics of accessing records. It led me to 
co-write with Charles Davis the book, the Art of Access, 
because the problems with the FOIA process, requesters are 
forced to be adept at what I call psychological warfare. It is 
a cat and mouse game. And it shouldn't be that way, but it is. 
And it really helps no one, not requesters, not agencies, not 
taxpayers. And that is why I think it is imperative to fix the 
laws and develop a culture of openness in Government.
    Changing people is a lot harder than changing laws, but it 
can be done. It is a state of mind grounded in one's psyche, 
and it can be learned. So how do we do this? Well, there are a 
couple of different ways, and I am sure others have great 
ideas. But first, I would think that we need harsher penalties 
for noncompliance. We see this at the State level and the 
effectiveness it has. Some of the most transparent States in 
this country, Florida, Texas and others, have provisions for 
jail time or fines against agencies or individuals who act in 
bad faith, who knowingly break the law. I think we need that in 
FOIA as well.
    We need more assistance for requesters. We have this 
wonderful new office, OGIS, but we can do more. We need more 
staffers for OGIS, apparently, and I agree with them. It is 
unreasonable to expect an average citizen to take the time and 
money to sue the Government for information. Just figuring out 
what the information is to ask for is a challenge.
    We need online accountability. FOIA performance for all 
agencies should be made clear in one place, perhaps on the new 
Open Government Dashboard. Quantifiable benchmarks should be 
set and agencies graded, much like restaurant inspections or 
school standardized testing. When it comes to FOIA, I would 
like to know, is an agency passing? Is it exceptional? Or is it 
    We need more funding and rewards for agencies, carrots. It 
is unfair to require agencies to be more transparent, but not 
provide them the resources to do it. We need more staffing to 
reduce backlogs. We need prizes and monetary awards for doing a 
good job.
    And finally, training of values. We need training of all 
Federal employees, not just FOIA officers, on the fundamental 
principles of open Government. There are States that do this, 
and I think it is effective. I had to take this training once 
as a State employee, why it matters, government accountability, 
economic innovation, an informed electorate, building public 
    Too often, training is limited to FOIA officers and they 
are focused on the application of exemptions, how to keep 
things secret. If we are going to have a culture of openness, 
then that means truly internalizing the societal benefits of 
    So in conclusion, I am pleased with what we have seen this 
past year so far as a starting point. There are still a lot of 
problems that need to be fixed, but change takes time and if 
this administration stays on track, I am hopeful this country 
can develop a strong Freedom of Information Act and a lasting 
culture of openness.
    Thank you, sir.
    [The prepared statement of Mr. Cuillier follows:]

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    Mr. Clay. Thank you so much, Professor.
    Mr. Fitton, you have 5 minutes.

                    STATEMENT OF TOM FITTON

    Mr. Fitton. Thank you, Mr. Chairman, Mr. Vice Chairman, and 
thank you for inviting me to this important hearing.
    Essential to Judicial Watch's anti-corruption watchdog 
mission is the Freedom of Information Act. Judicial Watch uses 
this tool effectively to root out corruption. We have used it 
to root out corruption in the Clinton administration and we 
took on the Bush administration's penchant for improper 
    We have nearly 16 years of experience in using FOIA to 
advance the public interest, and we are perhaps the most active 
FOIA requester and litigator operating today.
    The American people were promised a new era of transparency 
by the Obama administration. Unfortunately, this promise has 
not been kept. To be clear, the Obama administration is less 
transparent, in our experience, than the Bush administration. 
We have well over 340 FOIA requests pending with the Obama 
administration, and we have filed over 20 FOIA lawsuits in 
Federal court against this administration.
    Administratively, agencies have put in place additional 
hurdles and stonewalled even the most basic FOIA requests. The 
Bush administration was tough and tricky, but the Obama 
administration is tougher and trickier. The Obama 
administration continues to fight us tooth and nail in court. 
The Obama administration's approach to FOIA is exactly the same 
as the Bush administration's, so one can imagine that we don't 
have an easy time litigating these issues in court against the 
Obama Justice Department.
    Now, in my written testimony, I detail some of the legal 
wrangling we are involved in, but generally as a policy matter 
the Obama administration has decided to wall off, for instance, 
the Fannie and Freddie records now controlled, in our view, by 
the Federal Housing Finance Administration. $400 billion in 
taxpayer funds are now at least committed to these two 
entities, and yet their argument is that we can't have access 
to that. Unfortunately, we are now disputing that in court and 
people can see details of that in my written testimony.
    And in addition to the problem of walling off FHFA's 
control of our Nation's mortgage market through Fannie and 
Freddie from public accountability, the Obama Treasury 
Department is a black hole for basic information requests on 
the various Government bailouts.
    So I can't quite fathom how some can laud a new era of 
transparency while over $1 trillion in Government spending is 
shielded from practical oversight and scrutiny by the American 
    And the subcommittee might also be interested to learn 
about some of the background related to the release of the 
White House visitor logs. Those logs are being released at the 
sole discretion of the Obama White House. And they are making 
the argument, and we are fighting with them in court, but the 
policy dispute is over whether or not these logs are subject to 
the Freedom of Information Act. And to echo David's point 
earlier, the Bush administration made this point in court 
recently at the end of its administration. The Obama 
administration has continued to argue they are not subject to 
FOIA. So we are in a fight with them on that key issue that 
they are using in terms of their public pronouncements on 
extolling their own openness.
    So on two major transparency issues, and people can read 
the details of that in my written testimony. I know you don't 
want to go into the details of litigation. But two transparency 
issues relate to policy. This a policy debate as well, on the 
bailouts and White House access. The Obama administration has 
come down on the side of secrecy.
    Releasing high value data sets from Government 
bureaucracies is meaningless in the face of key decisions to 
keep politically explosive material out of the public domain. 
So we give them an F on transparency.
    Let me end by saying the Founding Fathers understood why 
transparency is important. Let me quote John Adams, and we can 
all agree on John Adams, I think: ``Liberty cannot be preserved 
without a general knowledge among the people. They have a 
right, an indisputable, inalienable and indefeasible divine 
right, to that most dreaded and envied kind of knowledge, I 
mean of the characters and conduct of their rulers.''
    Thank you for your time, and I am happy to submit to 
    [The prepared statement of Mr. Fitton follows:]

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    Mr. Clay. Thank you so much for your testimony.
    I guess this is a panel-wide question. Have any of the 
witnesses noticed improvement in responses from agencies under 
the Obama administration as compared to the Bush 
administration? For instance, Ms. Rosenbaum got a response from 
a 4-year old request, and could it be because the culture has 
changed at the agency that you requested it?
    Ms. Rosenbaum. There is still a long delay in that 
particular request within this administration. We have seen 
some improvements. We are seeing some of our requests acted on 
quicker than we might have expected beforehand. As I said, we 
have seen some improvements in communication where it is a 
little bit easier. There will be more sort of interim responses 
letting people know a little bit more about what is happening 
with their request while it is in the process of being 
    Mr. Clay. OK, that is one that says they have seen 
    Mr. Sobel. Mr. Chairman, I honestly have not really noticed 
a great deal of difference at the agency level. But in 
fairness, I have to say I tend to deal with the difficult 
agencies. I mean, where the culture is a real problem, agencies 
like the FBI and various components of the Department of 
Homeland Security where the law enforcement culture in those 
agencies just tends to be resistant to the concept of opening 
things up.
    Mr. Clay. So you still see stonewalling?
    Mr. Sobel. Yes, I do. And to underscore what I said 
earlier, I think the point of contact where the 
administration's stated policy could have an impact is when 
agencies like that get sued, they should be told by Justice 
Department lawyers, we are not going to defend this. And that 
is how you send the message, and I don't see that happening. So 
I think we need to find ways where the rhetoric can get 
translated into reality, and those are the things that I am 
really looking for.
    Mr. Clay. That is a very good point.
    Ms. Cohen, any difference in the administrations?
    Ms. Cohen. I think what a lot of people are seeing is a lot 
more politeness from the people that they are dealing with, 
kind of not quite as much of a confrontational initial stance, 
but sadly, not a whole lot of difference in the results in the 
end. So that is kind of what we are hearing. It is agency by 
agency, though, and some appear to be making a much more 
serious effort than others.
    Mr. Clay. Thank you for that response.
    Professor, any difference?
    Mr. Cuillier. Well, no. I haven't heard any, but then most 
journalists don't cover it any more. They are so fed up with 
it. So I am doing a survey in a couple of months. I am asking 
800 journalists that exact question, so I will get back to you.
    Mr. Clay. Thank you.
    Mr. Fitton.
    Mr. Fitton. Obviously, I think they are a little bit worse. 
Believe it or not, we are actually quite flexible working with 
agencies on focusing and narrowing requests, but there is not 
too much difference. And at the legal level, that is where the 
rubber meets the road and it is the same as the Bush 
administration as a problem.
    Mr. Clay. So it is the same amount of suits, litigation.
    Mr. Fitton. Well, the Government is doing, respectfully, a 
lot more these days so we are asking a lot more questions. So 
as a result, we have a few more lawsuits.
    But their position in the lawsuits are not only problematic 
in terms of traditional FOIA, but the key provision of the new 
FOIA law related to awarding attorney's fees and costs as an 
incentive to agencies to get the documents out. David as a 
lawyer may have more insight on this than me. They are trying 
to read that out of the law, practically speaking, saying that 
just because you file a lawsuit doesn't mean you should get 
costs if the documents come out as a result.
    So the lawyers are the problem. How is that for a summary 
    Mr. Clay. Well, we better make sure we take care of the 
lawyers. [Laughter.]
    Mr. Sobel, let me ask you, there are those who say the 
administration has not done enough in the last year to improve 
the FOIA process. Others say that after many years of 
Government secrecy, it takes time to turn things around. Before 
I ask you about the process itself, I would like to ask how 
important you think it has been and will continue to be that 
the President has issued clear and unambiguous guidance that 
the presumption of the administration is to disclose rather 
than to withhold?
    Mr. Sobel. I think it is important, but the question, as I 
indicated a couple of minutes ago, is how do you make that 
filter down to the front lines where these decisions are being 
made by over-burdened FOIA personnel every day. And I agree 
that incentives and disincentives is an important concept.
    One of the points I raise in my written testimony is that 
the Civil Service performance evaluation process probably ought 
to be taking into account performance with respect to 
transparency obligations. Agencies should think about or OPM 
should think about making transparency work a critical element 
in job performance.
    I think all of the incentives are to withhold. I mean, the 
average employee feels like they can be disciplined for 
releasing something improperly, but they don't have the same 
concern about withholding something improperly. And I think we 
need to change that. So it is very much at the level of the 
FOIA Office that the change needs to occur.
    Mr. Clay. And under your evaluation system, do you think 
that would curb the use of exemption three?
    Mr. Sobel. I think exemption three, talk about an agency by 
agency proposition. I mean, exemption three really exemplifies 
that, that every agency has their own exemption three statutes 
that they either are permitted to use or are inclined to use. 
But I certainly think with respect to some of the agencies that 
have access to most of those exemption three statutes, yes. I 
mean, more of a sense of penalty improper withholding would go 
a long way. Yes.
    Mr. Clay. Thank you for that response.
    Mr. McHenry.
    Mr. McHenry. Thank you, Mr. Chairman.
    Mr. Fitton, now, the chairman and I both serve on the 
Financial Services Committee as well, and obviously we have an 
interest in the GSEs and the Federal Home Loan Finance Agency, 
and the receivership that Fannie Mae and Freddie Mac are 
currently under. In essence, they are in my view functioning as 
a Government agency.
    You made a Freedom of Information request of documents from 
FHFA. Now, coming to light that the Government basically took 
over Fannie Mae and Freddie Mac and their hundreds of billions 
worth of debt, what was their justification? Now, they rejected 
your Freedom of Information request. Is that correct?
    Mr. Fitton. That is right. They believe that these are not 
agency records under FOIA and they cite their precedent and 
obviously we cite our precedent back. But you know, from a 
practical non-legal perspective, they seized control of these 
agencies. They control their operations down to the greatest 
minor detail. They control the appointment of the Board of 
Directors and all their communications. They have control of 
the records. They can search for them. But they have obviously 
decided to wall them off.
    That is a decision, in my view, that is not made lightly by 
the administration. This is a significant issue and the 
decision to wall Fannie and Freddie from FOIA scrutiny is the 
result of the Government taking it over. It is a decision that 
I suspect was not made lightly and indicative of the 
administration's position on a key transparency issue.
    Mr. McHenry. So they simply rejected it?
    Mr. Fitton. That is right. No one who wants to ask anything 
about Fannie and Freddie through the FHFA under the Freedom of 
Information Act, it will be responded to under their view of 
the law.
    Mr. McHenry. Have other groups experienced this? Anybody 
else in a similar situation with FHFA?
    Now, so the justification is that they are not a Government 
agency. Correct?
    Mr. Fitton. They are not a Government agency. They are a 
private corporation temporarily being held by the Government.
    Mr. McHenry. Well, is this emblematic of your experience 
with other agencies?
    Mr. Fitton. Well, it raises an interesting issue with the 
Treasury Department's running of General Motors. We haven't 
gotten necessarily into that fight specifically, I don't 
believe legally, but if the Government is running General 
Motors, if all General Motors, some of General Motors' 
operations' documents, for instance their hiring of lobbyists 
using taxpayer money, does that become subject to FOIA?
    On Treasury generally, they are terrible. They just ignore 
FOIAs. They grant themselves extra time.
    The Federal Reserve, a new area that everyone seems to be 
interested in these days. We are just asking for Ben Bernanke's 
visitor logs. We are not getting anywhere on it. Our interest 
there is obvious. There is a lot of money and power and 
sensitivity to the use of that money in power, given the 
financial crisis. And walling all of that off from effective 
disclosure and scrutiny, to me, is, that to me is the story of 
FOIA under the Obama administration.
    Mr. McHenry. How many FOIA requests did Judicial Watch, how 
many FOIA requests did you have in 2009?
    Mr. Fitton. In 2009? Over 300.
    Mr. McHenry. OK.
    Ms. Rosenbaum, Public Citizen, how many FOIA requests did 
you have in 2009?
    Ms. Rosenbaum. I actually don't know the number of requests 
that we have made.
    Mr. McHenry. OK. All right.
    Well, Mr. Sobel, you mentioned that certain agencies are 
just consistently bad.
    Mr. Sobel. Yes, I think that is a fair characterization.
    Mr. McHenry. Now, the sort of broader general question, is 
it the political appointees or is it the agency? There has been 
a shift, and thankfully the President said the right things. 
Unfortunately, we haven't seen implementation, and I think the 
panel in essence agrees that we have seen maybe in terms of 
courtesy a little more positive than the last administration, 
but in terms of results, it is basically the same or in some 
cases worse.
    What agencies, would you say it is the political appointees 
or the agency culture?
    Mr. Sobel. Well, with respect to that question, I think an 
interesting example, and an agency that happens to be near the 
top of my list in terms of bad agencies is the FBI. The FBI is 
an agency where you would assume that political appointees 
don't really play that much of a role because you have Director 
Muller who really is not a political person. I mean, he has now 
been there for a while. He has a 10-year term.
    I mean, if any agency you would assume is immune from 
political influence, we would like to think it is the FBI, and 
that is an agency that has historically had the worst backlogs. 
I cite in my testimony the fact that in one of our cases, the 
FBI asked for a 6-year stay in a court case to allow it to 
complete processing of a FOIA request.
    And then once they finally do get around to processing a 
request, they tend to withhold to an extent that I don't think 
it justified. And again, in my written testimony, we cite a 
specific example of material that was withheld by the FBI 3 
years after that very fact was revealed in a Department of 
Justice Inspector General report.
    So I think that is an example where it is culture because I 
do believe that the FBI, to a large extent, is immune to 
political trends one way or another.
    Mr. McHenry. My time has expired, but Ms. Cohen, Professor, 
if you could touch on this as well?
    Ms. Cohen. Yes, to me it is less agency by agency than it 
is kind of unpredictable on what appears to requesters to 
sometimes seem capricious. That if you can make the argument 
that it is in the agency's almost political interest to release 
something, you can get some records released, where somebody 
who doesn't make as good an argument that it is in their 
interest will get the same records denied.
    And for reporters, David is right. Very few reporters will 
go through the process. They would rather just get leaked 
documents at that point. So that is one effect of not having an 
effective one is that people look for other avenues a way 
around it.
    Mr. Cuillier. Yes, I don't have much to add. I think there 
are so many factors involved with whether you get records or 
not that it is hard to pinpoint one particular thing or one 
agency. But I think the type of records you ask for is probably 
a major factor, and there is research that shows that who you 
are affects whether you will get it or not. Journalists and 
politically sensitive requesters tend to not get things, or get 
delays, for example.
    Mr. McHenry. Thank you, Mr. Chairman, and thank you all for 
    Mr. Clay. Thank you, Mr. McHenry.
    Ms. Cohen, can you expand upon your suggestion that 
Congress should build transparency into the oversight of new 
information systems?
    Ms. Cohen. Yes, I was a reporter in Florida in the 1990's, 
and at that time the State instituted, and I don't know if it 
was a legal institution or just a practice, that when new 
information systems, new data bases were being designed, say, a 
new email system was being implemented, or, say, a new system 
to catalog inspections, that part of the certification of that 
system was that the public parts of it could be made public, 
could be easily extracted, and that it would not be mixed up 
with proprietary and private information, and it really did 
make a big difference there.
    Mr. Clay. Thank you for that response.
    Ms. Rosenbaum, in your written statement, you mention 
problems contacting FOIA public liaisons. Can you expand on 
this issue and give us a sense of what you expect from public 
    Ms. Rosenbaum. We have found that sometimes agencies are 
just very hard to get a hold of. I think the example I gave in 
my testimony was of trying to contact a public liaison and 
finding that he didn't tend to be at his desk and didn't have 
voice mail. So we just called, and when I would call the phone 
would ring and ring, and that was that.
    So I think it is important that the public liaisons be 
available to the requesters in order for them to have a sense 
of what is happening with their request and be able to have 
contact with the agencies about what is happening with those 
    Mr. Sobel. And Mr. Chairman, if I can just jump in on that.
    Mr. Clay. Sure.
    Mr. Sobel. I have had experiences where the phone number 
and the name of the employee listed on an agency Web site just 
appears to be wrong, where you dial the phone number and you 
get the voice mail for some other employee, and that is sort of 
the dead end that you hit.
    Mr. Clay. Doesn't sound like much priority is placed on 
    Mr. Sobel. No, and as a litigator, what is frustrating is I 
will usually make a very good faith effort to attempt to 
resolve an issue before taking it to court. And often those 
efforts are frustrated just by the inability to reach an adult 
in an agency to bring this matter to their attention.
    Mr. Clay. Thank you.
    Professor, what, in your opinion, is the single greatest 
point of misunderstanding between agencies and requesters?
    Mr. Cuillier. Well, I think often it is what the person is 
after. There is a lot of disconnect. A person wants X records 
and an agency thinks it is something else. And then that 
creates a problem. And the agency denies it outright, and then 
they start getting confrontational. They start digging in.
    And so I think that is where the human--we have a lot of 
problems with not just FOIA, but State public records, all that 
sort of things, because of that. People can't figure out what 
to ask for. Sometimes an agency won't help them figure out what 
to ask for. And so we get into this cycle of fighting.
    And so I like what I heard from Ms. Nisbet today about 
trying to figure out ways to get agencies to help requesters 
figure out what they are after. Unfortunately, I think 
sometimes when they are after something the agency doesn't want 
them to get, they help them not find the record. It can be a 
    Mr. Clay. Do you believe that the process in terms of 
legislation, regulation and policy is as good as it gets? And 
that requesters need to rely on strategy to improve their 
    Mr. Cuillier. Well, right now they do. Right now, they have 
to know a lot more than the law to get what they want. That is 
just the reality. That is why we wrote our book because we saw 
so many requesters running into problems.
    They think they can just say, here's the law; I would like 
to get this record, please. And it doesn't work that way. So I 
think it is really important that we figure out a way to make 
this work.
    Mr. Clay. OK. Thank you for the response.
    Representative McHenry.
    Mr. McHenry. Thank you, Mr. Chairman.
    Just very brief, but I would like everyone if you could 
just very briefly, not elaborate, but what are the top line 
things we can do in terms of policy, so that the public has 
more access rather than less? And this is not one 
administration. It is not one agency. It is the policy that we, 
here on the Hill, should legislate and ensure, and the reason 
why we have these hearings is to make sure the law as written 
is being followed. What kind of policy changes can we make in 
order to open this up?
    And we will just start with Mr. Fitton and just move on 
down the line.
    Mr. Fitton. I don't have an exact piece of advice on this 
issue. But the most abused exemption is the internal 
deliberative process withholdings that are made, and figuring 
out when and how that is appropriate, maybe legislating a way 
to allow requesters better access to that and giving the 
agencies less discretion in the seemingly arbitrary way they 
withhold documents in that regard.
    Mr. McHenry. OK. Thank you.
    Mr. Cuillier. Again, I would say penalties, and I would say 
some carrots. And I would look at some of the best State laws 
out there. There are some really good laws out there, and there 
are some States doing some incredibly good things in this way. 
Perhaps we can take a look at that. I think a lot of 
journalists, in particular, much prefer their State law to 
    Mr. McHenry. OK.
    Ms. Rosenbaum. The most recent FOIA amendments have tended 
to focus on process, which is very important because people 
need to actually be able to get responses and have their 
requests processed to get records. But I think that Congress 
should also consider more substantive amendments to the FOIA 
exemptions themselves.
    We think that Congress should include consideration of the 
public interest in disclosure in the exemptions, in more of the 
exemptions. That is not considered right now in determining 
whether records are exempt under various of the exemptions.
    Mr. McHenry. OK.
    Ms. Cohen. I think that giving the same priority to 
disclosure as we give to other priorities in Government 
throughout a lot of different laws, not just the FOIA law, 
would make a big difference. And also somehow, and I don't have 
a specific example of this, but to change the power balance 
between the requester and the agency. Right now, there is only 
one power there and that is the agencies, then there is really 
nothing that a requester can do.
    Mr. Sobel. First, I would agree with Adina that we need to 
take a look at the substance of the exemptions and build in a 
public interest component to a greater extent than is currently 
the case.
    And second, and this is not a very satisfactory 
recommendation because nobody wants another study commission, 
but I do think that the Faster FOIA Act idea of finally 
examining in depth the delay problem is really a necessary 
step. And if that had been done several years ago when this 
idea first came up and actually passed the Senate Judiciary 
Committee, we would be sitting here today with some real 
information and some real recommendations. So I think we 
finally do need to get that process started.
    Mr. McHenry. OK. Thank you so much. This is very helpful 
because so much of what we talk about here is the problem, not 
the solution. So just to pivot and give us some thought 
process, give us food for thought on how to approach this.
    And I certainly appreciate you all being here and the 
interests that you are trying to carry out on behalf of the 
    Thank you.
    Mr. Clay. Thank you.
    Let me also thank this panel and the previous panel for 
your participation in this hearing that kind of highlights 
Sunshine Week, and it is so important that we improve upon FOIA 
and how the Federal Government interacts with the public, 
especially the requester community. I think your testimony has 
been invaluable.
    And without objection, this hearing is adjourned.
    [Whereupon, at 4:37 p.m., the subcommittee was adjourned.]