    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

      THE FREEDOM OF INFORMATION ACT: CROWD-SOURCING GOVERNMENT OVERSIGHT

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

                                    HEARING

                                   before the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 17, 2011

                                   __________

                               Serial No. 112-19

                                   __________

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

             Available via the World Wide Web: http://www.fdsys.gov
                          http://www.house.gov/reform

                      U.S. GOVERNMENT PRINTING OFFICE
    67-618                    WASHINGTON : 2011
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing Office,
    http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     DARRELL E. ISSA, California, Chairman
    DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland,
    JOHN L. MICA, Florida                    Ranking Minority Member
    TODD RUSSELL PLATTS, Pennsylvania    EDOLPHUS TOWNS, New York
    MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
    PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of
    JIM JORDAN, Ohio                         Columbia
    JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
    CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
    TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
    JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
    JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
    ANN MARIE BUERKLE, New York          GERALD E. CONNOLLY, Virginia
    PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
    RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
    PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
    SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
    JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
    TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
    DENNIS A. ROSS, Florida              JACKIE SPEIER, California
    FRANK C. GUINTA, New Hampshire
    BLAKE FARENTHOLD, Texas
    MIKE KELLY, Pennsylvania

                       Lawrence J. Brady, Staff Director
                    John D. Cuaderes, Deputy Staff Director
                         Robert Borden, General Counsel
                           Linda A. Good, Chief Clerk
                     David Rapallo, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on March 17, 2011...................................     1
    Statement of:
        Nisbet, Miriam, Director, Office of Government Information
          Services, National Archives and Records Administration;
          Daniel Metcalfe, executive director, Collaboration on
          Government Secrecy; Rick Blum, coordinator, Sunshine in
          Government; Tom Fitton, president, Judicial Watch; and
          Angela Canterbury, director, Public Policy Project on Open
          Government Oversight.......................................     7
            Blum, Rick...............................................    24
            Canterbury, Angela.......................................    48
            Fitton, Tom..............................................    33
            Metcalfe, Daniel.........................................    15
            Nisbet, Miriam...........................................     7
    Letters, statements, etc., submitted for the record by:
        Blum, Rick, coordinator, Sunshine in Government, prepared
          statement of...............................................    26
        Canterbury, Angela, director, Public Policy Project on Open
          Government Oversight, prepared statement of................    50
        Fitton, Tom, president, Judicial Watch, prepared statement of    35
        Issa, Hon. Darrell E., a Representative in Congress from the
          State of California, prepared statement of.................     3
        Metcalfe, Daniel, executive director, Collaboration on
          Government Secrecy, prepared statement of..................    18
        Nisbet, Miriam, Director, Office of Government Information
          Services, National Archives and Records Administration,
          prepared statement of......................................     9

      THE FREEDOM OF INFORMATION ACT: CROWD-SOURCING GOVERNMENT OVERSIGHT

                                  ----------

                            THURSDAY, MARCH 17, 2011

                              House of Representatives,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:32 a.m. in room
    2154, Rayburn House Office Building, Hon. Darrell E. Issa
    (chairman of the committee) presiding.
        Present: Representatives Issa, Platts, McHenry, Chaffetz,
    Walberg, Lankford, Amash, Buerkle, Gosar, Meehan, Farenthold,
    Kelly, Cummings, Towns, Norton, Tierney, Clay, Connolly,
    Quigley.
        Staff present: Ali Ahmad, deputy press secretary; Robert
    Borden, general counsel; Molly Boyl, parliamentarian; Lawrence
    J. Brady, staff director; Benjamin Stroud Cole, policy advisor
    and investigative analyst; Gwen D'Luzansky, assistant clerk;
    Adam P. Fromm, director, Member liaison and floor operations;
    Linda Good, chief clerk; Frederick Hill, director,
    communications and senior policy advisor; Christopher Hixon,
    deputy chief counsel, oversight; Hudson T. Hollister, counsel;
    Justin LoFranco, press assistant; Mark D. Marin, senior
    professional staff member; Tegan Millspaw, research analyst;
    Laura Rush, deputy chief clerk; Nadia A. Zahran, staff
    assistant; Krista Boyd and Beverly Britton Fraser, minority
    counsels; Carla Hultberg, minority chief clerk; Lucinda
    Lessley, minority policy director; Amy Miller, minority
    professional staff member; Dave Rapallo, minority staff
    director; Suzanne Sachsman Grooms, minority chief counsel; Mark
    Stephenson, minority senior policy advisor/legislative
    director.
        Chairman Issa. The committee will come to order.
        Good morning.
        The task of the committee is to hold Government accountable
    to taxpayers because taxpayers have a right to know what they
    get from their government. We will work tirelessly in
    partnership with citizen watchdogs to deliver the facts to the
    American people and bring genuine reform to the Federal
    bureaucracy. This is the mission of the Oversight and
    Government Reform Committee.
        Today's hearing falls exactly within our mission statement
    and is, in fact, the heart of our statement. Bureaucratic
    accountability is, in fact, a growing problem in America at a
    time in which we would hope that data transparency, Web sites
    that can be automatically populated with information day in and
    day out so that Americans seamlessly search for information
    they have a right to know, should be a given, but it is the
    exception, the rare exception.
        FOIA authority needs to be expanded. But let me assure you,
    FOIA needs to be nearly obsolete, obsolete because most
    information requested and seldom properly granted should be
    available on-line in real time. This committee will have to
    work with this and future administrations to break down the
    silos that have for so long caused the closing even of
    financial information to be done generally by tens or hundreds
    of bureaucrats retyping and re-inputting data or data centers
    manipulating data from divergent data bases.
        Today, we will hear about the President's-issued Executive
    order directing Federal agencies to disclose more information
    and disclose it more rapidly and to reduce the backlog. For
    this, we commend the President.
        Just this week, John Podesta, the man who managed the
    President's transition team, stated his disappointment in how
    the administration has thus far implemented FOIA procedures.
    Indeed, transparency is often the victim of electoral success.
    Every inspiring Presidential candidate promises voters to
    inaugurate a new era of open government upon his election, but
    nearly every administration, and if this hadn't been written
    for me, I might have said every administration, proceeds to
    delay, redact or deny FOIA requests when public disclosure of
    information is deemed politically inconvenient.
        The committee has initiated a comprehensive analysis of how
    Federal Governments handle FOIA procedures. In recent weeks,
    the committee has witnessed firsthand the bureaucratic
    obstruction that the general public often experiences. The
    committee experience to date reveals inadequacies in FOIA as
    well as a disparity in FOIA compliance among Federal agencies.
        Today's hearing will afford the committee an opportunity to
    fully examine some of the problems associated with FOIA design
    and implementation as well as executive branch compliance.
        I look forward to the witnesses today. In closing, before I
    recognize the ranking member, I also would like to thank the
    men and women who do FOIA compliance. As much as today's
    hearing may be about delays and bureaucratic ineptness, there
    are hundreds upon hundreds of people whose job it is every day
    to try to work within a system that they did not create, rules
    that they with which they must comply, and frustrations when
    people are complaining they didn't get what they asked for,
    they didn't get it at all, or they didn't get it in a timely
    fashion.
        From this committee, which represents the rights of every
    Federal worker, if you will, let us understand today it is not
    about blaming those in the FOIA compliance. It is about blaming
    those of us well above them who have an obligation to make the
    system work so they can do their job better.
        With that, I recognize the ranking member for an opening
    statement.
        [The prepared statement of Hon. Darrell E. Issa follows:]

        [GRAPHIC] [TIFF OMITTED] T7618.001

        [GRAPHIC] [TIFF OMITTED] T7618.002

        Mr. Cummings. Thank you, Mr. Chairman, and thank you for
    calling this hearing.
        I want to begin where you ended. So often so many negative
    things are said about our public employees. It is very good to
    hear you feel as I do, Mr. Chairman, that public employees play
    a very, very important role. They are often unseen, unnoticed,
    unappreciated and unapplauded. I take this moment to join with
    you in thanking, not only the FOIA employees, but all of our
    public employees who, contrary to so many statements we have
    heard, quite often are underpaid and dedicate their lives to
    making a difference.
        This is Sunshine Week, our Nation's observance of the
    importance of open and transparent government. This week also
    marks the 260th anniversary of James Madison's birth. He was a
    champion of the public's right to know and a strong defender of
    open government. In 1822, James Madison said, ``A popular
    government without popular information or the means of
    acquiring it, is but a prologue to a farce, or a tragedy, or
    perhaps both. Knowledge will forever govern ignorance, and a
    people who mean to be their own Governors, must arm themselves
    with the power knowledge gives.''
        It is fitting today that our committee is holding a hearing
    on one of the pillars of open government, the Freedom of
    Information Act, which helps ensure that the public has the
    information and the knowledge that Madison described so
    powerfully.
        Beginning with his first day in office, President Obama has
    reinvigorated the executive branch's commitment to open
    government and reversed many of the troubling policies of his
    predecessor. Highlighting FOIA as ``the most prominent
    expression of a profound national commitment to ensuring an
    open government, the President said, ``The Freedom of
    Information Act should be administered with a clear
    presumption. In the face of doubt, openness prevails.''
        Based on this instruction, Attorney General Eric Holder
    rescinded Attorney General Ashcroft's 2001 policy memorandum on
    FOIA that allowed agencies to err on the side of secrecy rather
    than disclosure for eight long years. The Obama
    administration's new commitment to transparency and open
    government has resulted in significant improvements in FOIA
    implementation.
        FOIA backlogs have been reduced significantly in back to
    back years under this administration. Agencies, such as the
    Departments of Agriculture and Defense, have decreased incoming
    requests by proactively disclosing more information online. The
    Department of Justice recently unveiled FOIA.gov, a
    comprehensive public resource for governmentwide FOIA
    information and data.
        Still, there is always room for improvement, we can always
    do better. A recent report from the National Security Archive
    found that the Obama administration ``has clearly stated a new
    policy direction for open government but has not conquered the
    challenge of communicating and enforcing that message
    throughout the executive branch.''
        In my opinion, the best way to make government more
    effective is to make it more accountable to the public. For
    this reason, I am pleased to announce that I have introduced
    legislation this morning to strengthen the Nation's core Open
    Government laws, and every Democratic member of our committee
    is an original co-sponsor.
        This legislation, the Transparency and Openness in
    Government Act, is a package of five bills that overwhelmingly
    passed the House in the last Congress with broad, bipartisan
    support, including your own, Mr. Chairman.
        This legislation will make Federal commissions more
    transparent and accountable; increase public access to
    Presidential records; require greater disclosure of donations
    to Presidential libraries; ensure that government email records
    are preserved; and clarify the authority of the Government
    Accountability Office to access agency records.
        Mr. Chairman, I know you believe that transparency should
    not be a partisan issue, I heard what you just said and I know
    you mean it, so I hope that you will join as a co-sponsor also.
    As chairman of this committee and chairman of the House
    Transparency Caucus and as a supporter of identical language
    that passed in the last Congress, I know you share our goals.
        Given the widespread bipartisan support of these
    provisions, I hope that you and every single Republican and
    every single Democrat in the House will join us in making sure
    that we sign on to this bill and urge Speaker Boehner to move
    it to the House floor as swiftly as possible.
        With that, Mr. Chairman, again I thank you for this
    hearing. I look forward to the testimony and I thank the
    witnesses for being with us today.
        With that, I yield.
        Chairman Issa. I thank the ranking member.
        Members may have 7 days to submit opening statements and
    extraneous material for the record.
        The chair will now recognize the panel of witnesses.
        Ms. Nisbet is Director, Office of Government Information
    Services which acts as a FOIA ombudsman between requesters and
    agencies.
        Professor Daniel Metcalfe is the executive director of
    Collaboration of Government Secrecy through American
    University's Washington College of Law and a former Director of
    the Office of Information and Privacy at the Department of
    Justice.
        Rick Blum is the coordinator for the Sunshine in Government
    Initiative and has spent over a decade in Washington advocating
    for greater transparency in government.
        Tom Fitton is president of Judicial Watch, a conservative,
    nonprofit whose mission is to promote transparency and
    accountability in government. We are very familiar with your
    work also.
        Ms. Angela Canterbury is director of public policy at the
    Project on Open Government [POGO], which is focused on
    achieving effective, accountable and open, ethical government.
    Again, we thank you for your work.
        It is the rule of the committee that all witnesses be
    sworn. Please rise to take the oath.
        [Witnesses sworn.]
        Chairman Issa. Please be seated.
        I would inform the entire panel that contrary to our
    ordinary procedure, since this is the last day before recess,
    votes will be held sometime during this hearing. There will
    only be two votes. We will stay for at least 5 minutes, perhaps
    as much as 10. If you are still making your statements, we will
    leave, there will be two votes, and we should be back in 20 to
    25 minutes after we leave.
        I would announce that as soon as anyone returns who can
    take the chair, we will commence, so that we not interrupt. We
    will also take Members who come back in the order they return
    if there is time.
        Most of you have been here a lot and you know the drill,
    green, yellow and red. Let us get through all of you if we can
    before the votes.
        Ms. Nisbet.

      STATEMENTS OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT
          INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS
         ADMINISTRATION; DANIEL METCALFE, EXECUTIVE DIRECTOR,
     COLLABORATION ON GOVERNMENT SECRECY; RICK BLUM, COORDINATOR,
    SUNSHINE IN GOVERNMENT; TOM FITTON, PRESIDENT, JUDICIAL WATCH;
    AND ANGELA CANTERBURY, DIRECTOR, PUBLIC POLICY PROJECT ON OPEN
                          GOVERNMENT OVERSIGHT

                       STATEMENT OF MIRIAM NISBET

        Ms. Nisbet. Good morning, Mr. Chairman, Representative
    Cummings and members of the committee.
        I am delighted to be here today during Sunshine Week to
    talk about my office, the Office of Government Information
    Services at the National Archives and Records Administration.
    We are an important part of the Freedom of Information and Open
    Government Initiatives of the Federal Government and we are
    also a new approach under the FOIA to avoiding litigation.
        As you know, the FOIA is pretty simple in concept but a bit
    more complicated in execution. Anyone can ask for records of
    the executive branch agencies which then, within strict time
    limits, must respond to the requester either disclosing the
    records or giving the reasons why they are not being disclosed
    under specific exemptions. If dissatisfied, the requester can
    file an administrative appeal within the agency and then, if
    still unhappy, file a lawsuit in Federal court.
        At least that was the law until the FOIA was amended in
    2007 to create the Office of Government Information Services or
    OGIS, as we call it, to offer mediation services to resolve
    disputes between FOIA requesters and the executive branch
    agencies.
        In addition to resolving disputes, the statute directs us
    to review agency FOIA policy, procedures and compliance. In
    carrying out our mission, we have realized that much of our
    work does fall under the designation that Congress gave us as
    the FOIA ombudsman. As an ombudsman, OGIS acts as a
    confidential and informal information resource, communications
    channel and compliant handler. OGIS supports and advocates for
    the FOIA process and does not champion requesters over agencies
    or vice versa. We encourage a more collaborative, accessible
    FOIA for everyone.
        At this hearing, looking at, among other things, crowd
    sourcing of FOIA oversight, you will be glad to hear that the
    interest in FOIA reaches far and wide, based on what we have
    seen in our first 18 months of operation. We heard from
    requesters from 43 States, the District of Columbia, Puerto
    Rico and 12 foreign countries. Our cases have involved 32
    departments and agencies, including all 15 Cabinet level
    departments.
        We answered questions, provided information, listened to
    complaints and tried to help in any way we could. For the more
    substantive disputes, we facilitated discussions between the
    parties, both over the phone and in person, and worked to help
    them find mutually acceptable solutions.
        The statutory term mediation services include the
    following: formal mediation, facilitation and ombud services.
    We have found the less formal method of facilitation by OGIS
    staff members provides something similar to mediation but, as I
    said, in a less formal way, and parties are more willing to
    engage with OGIS and with each other without the perceived
    formality of mediation.
        Since September 2009 when we opened, OGIS has closed 541
    cases, 124 of them true disputes between FOIA requesters and
    agencies such as fees charged and FOIA exemptions as applied.
    As a facilitator for the FOIA process to work as it is
    intended, we were not calling balls and strikes, but letting
    the parties try to work matters through with our assistance in
    an effort to avoid litigation. In three-quarters of the
    disputes we handled, we believe the parties walked away
    satisfied and that OGIS helped them to resolve their disputes.
    You can read about those cases in our public case log which is
    posted on our Web site.
        A realization we quickly faced is that defining success is
    a challenge. The final results of our process is not both
    parties getting exactly what they want, sometimes not even
    close, but if we are able to help them in some way by providing
    more information or by helping them understand the other
    party's interest, we feel that we have provided a valuable
    service.
        When OGIS first set out, we spoke of changing a culture, a
    mind set from one of reacting to a dispute in an adversarial
    setting to one of actively managing conflict in a neutral
    setting. OGIS has a unique perspective in the way FOIA works.
    We work side by side with FOIA professionals and the agencies
    to improve the process from within, and we also work closely
    with requesters on the outside to address shortcomings.
        We have seen the importance of building relationships and
    trust among the members of the FOIA community. It is an
    exciting process. We have just gotten started, but we are
    pleased to see so many positive results in a short time.
        Thank you, Mr. Chairman.
        [The prepared statement of Ms. Nisbet follows:]

        [GRAPHIC] [TIFF OMITTED] T7618.003

        [GRAPHIC] [TIFF OMITTED] T7618.004

        [GRAPHIC] [TIFF OMITTED] T7618.005

        [GRAPHIC] [TIFF OMITTED] T7618.006

        [GRAPHIC] [TIFF OMITTED] T7618.007

        [GRAPHIC] [TIFF OMITTED] T7618.008

        Chairman Issa. Thank you.
        Mr. Metcalfe.

                      STATEMENT OF DANIEL METCALFE

        Mr. Metcalfe. Good morning, Mr. Chairman and members of the
    committee.
        As someone who has worked with the Freedom of Information
    Act for almost 35 years now, I am pleased to be here to provide
    an academic perspective on the act and its Government-wide
    administration.
        My own views today are rooted in my work at American
    University's Washington College of Law in recent years where I
    teach courses in Government information law and direct the
    Collaboration on Government Secrecy or CGS for short. CGS came
    into existence in 2007 as the first academic center at any law
    school in the world to focus on the subject area, in addition
    to maintaining an extensive Web site as an academic resource
    for all those interested in Government secrecy and transparency
    as two sides of the same coin.
        We have conducted a dozen day-long programs on the subject
    with particularly heavily focus on the FOIA.
        This academic perspective is also informed by decades of
    experience in leading the component of the Department of
    Justice that discharges the Attorney General's responsibility
    to guide all agencies of the executive branch on the
    complexities of the FOIA's administration. I know, firsthand,
    both the difficulties to Federal agencies that FOIA requests
    can pose and the challenges met in encouraging proper
    compliance with the act, including new policy conformity by all
    agencies notwithstanding those difficulties.
        It is through that lens that I view the many ways in which
    the openness in government community has been disappointed by
    the surprising slowness and incompleteness of the Obama
    administration's new FOIA policy implementation during these
    past 2 years.
        This began with the Holder FOIA memorandum itself, as
    quickly issued as it was. Contrary to all expectations and
    despite the precedent established by Attorney General Janet
    Reno not long before, the Holder FOIA memorandum did not, by
    its terms, apply its new foreseeable harm standard to all
    pending litigation cases where it could have had an immediate,
    highly consequential impact. Rather, it contained a series of
    lawyerly hedges that appear to have effectively insulated
    pending cases from it.
        As one of the speakers at CGS' FOIA Community Conference in
    January pointedly observed, the FOIA requester community is
    still waiting to see a list of any litigation cases in which
    the foreseeable harm standard has been applied to yield greater
    disclosure. There is a very strong suspicion that there are
    few, at best, and perhaps even no such cases. Thus, the best
    possible opportunity to press for full adoption of the standard
    throughout the executive branch in a concrete, exemplary
    fashion was lost.
        Neither did the Holder FOIA memorandum or its initial
    implementation and guidance take the expected step of directing
    agencies to reduce their backlogs of pending FOIA cases.
    Whereas the Reno FOIA memorandum and its implementing guidance
    had immediately confronted that difficult subject, their 2009
    counterparts contain hardly a word about it, let alone a
    direction to reduce any backlog. That did not come until the
    broader Open Government directive was issued in December 2009.
    This led to the Department of Justice straining at this time
    last year to claim Government-wide backlog reduction progress
    based upon new annual report statistics that hardly could be
    connected to what the Obama administration actually had done.
        This remains a matter of concern today for more than one
    reason. First, there is the awkward fact that the Justice
    Department's own FOIA backlog has not been reduced in the past
    year. Rather, it has been allowed to worsen.
        When the lead Government agency for the FOIA fails in its
    entirety to reduce its own backlog, it makes it much harder to
    press other departments and agencies to do so. This do as I
    say, not as I do, problem is exacerbated by the fact that the
    Department's high visibility leadership offices, the Offices of
    Attorney General, Deputy Attorney General and Associate
    Attorney General, saw their own numbers of pending requests
    increase in this past year by an aggregate figure of nearly 33
    percent. This makes it impossible to lead by example.
        Turning to the FOIA's exemptions, the one that cries out
    for immediate attention is, of course, exemption 2. This is
    because Federal agencies have been for nearly three decades
    using the so-called High 2 aspect of the exemption to withhold
    sensitive information, the disclosure of which could reasonably
    be expected to enable someone to circumvent the law, especially
    in the post-9/11 context.
        Ten days ago, the Supreme Court firmly ruled in Milner v.
    Department of the Navy, that this longstanding interpretation
    of exemption 2 is incorrect. As of that date, High 2 simply
    ceased to exist. This means that the large amounts of
    information that agencies have regularly withheld under
    exemption 2 alone are no longer properly withheld on that
    basis. It places agencies in an immediate quandary over how to
    handle such sensitive information both at the administrative
    level and in FOIA cases pending in court.
        I think the summary of the position with respect to
    exemption 2, in the interest of time, is that this committee
    does need to address it with nothing less than a wholesale
    rewrite of the exemption carefully contoured to protect
    security sensitive information with a firm harm standard.
        In conclusion, I also want to mention something briefly
    about exemption 3 because I think the committee will also want
    to pay attention to that. I know it struggles with the proposed
    new exemption 3 statutes that it tries to flag for attention,
    but there is also the matter of the existing exemption 3
    statutes.
        This past year, CGS conducted an academic study of this
    subject by first compiling a list of the statutes invoked, more
    than 300 of them, and in summary, we found nearly half of them
    were not properly qualified to be invoked as exemption 3
    statutes.
        The committee could take this groundwork if it chooses and
    buildupon it simply by asking each agency that reports using a
    questionable statute under exemption 3 to look into why and how
    it is doing so. I daresay that if the committee were to take
    such a step, it would, at a minimum, result in dozens of
    agencies realizing that many dozens of the statutes it now
    regularly uses, are not truly exemption 3 statutes at all.
        Thank you for the opportunity to testify today and I look
    forward to answering your questions.
        [The prepared statement of Mr. Metcalfe follows:]

        [GRAPHIC] [TIFF OMITTED] T7618.009

        [GRAPHIC] [TIFF OMITTED] T7618.010

        [GRAPHIC] [TIFF OMITTED] T7618.011

        [GRAPHIC] [TIFF OMITTED] T7618.012

        [GRAPHIC] [TIFF OMITTED] T7618.013

        [GRAPHIC] [TIFF OMITTED] T7618.014

        Chairman Issa. Thank you.
        Mr. Blum.

                         STATEMENT OF RICK BLUM

        Mr. Blum. Thank you, Chairman Issa, Ranking Member Cummings
    and members of the committee.
        I coordinate the Sunshine in Government Initiative, a
    coalition of media groups dedicated to prompting transparency
    and accountability in government.
        FOIA is a vital tool to identify problems in government and
    society. Because of FOIA, the public learned that meat in
    school lunches has been held to a lower safety standard than
    meat supplied to adults and firefighter safety equipment would
    not work well at high temperatures or when wet and yet
    journalists comprise only about 6 percent of all FOIA requests.
    Why? There are several reasons, none surprising.
        Some are long delays and backlogs that persist in every
    administration, no matter which party controls the White House,
    few consequences for agencies improperly denying and delaying
    requests; and most journalists simply don't have the luxury to
    wait or fight bureaucratic battles and move on to the next
    story.
        The most successful FOIA filers are the most organized and
    patient. Despite some improvements from the President's
    transparency efforts, reporters filing FOIA requests are seeing
    little improvement on the ground. I would like to focus my
    comments on the costs of FOIA, troublesome statutory exemptions
    to FOIA under exemption 3, as Dan mentioned, and the use of
    technology to better manage the FOIA process.
        First, the cost of FOIA, the government is spending more
    money on the FOIA process. Federal spending on FOIA is up 35
    percent in 2 years. In 2010, agencies reported spending nearly
    $400 million to process FOIA requests. At the same time, the
    investment in FOIA can save taxpayer dollars by shining a light
    on what Government is doing. Let me give you an example.
        The Washington Post tied good reporting with FOIA to show
    that farm subsidy payments meant as a safety net for struggling
    farmers were going to wealthy farmers and suburbanites.
    Proposed reforms to the subsidy program would save taxpayers an
    estimated $228 million in the first year and $2\1/2\ billion
    over 10 years. We have no position on farm subsidies, but it is
    worth noting these changes would pay for most of the
    Government's FOIA expenses. That is just one set of FOIA
    requests.
        Let me also address statutory (b)(3) exemptions. These are
    exemptions that are written into the law. These undermine
    FOIA's presumption of disclosure. Our Coalition spends
    considerable resources fighting defensively against the worst
    of these proposed exemptions. We looked at agency reports over
    the last decade that count how many statutes there are, similar
    to what Dan did. We found, when you eliminate duplicates,
    Federal agencies cited at least 240 different statutes, it may
    be over 300, in denying FOIA requests.
        For Sunshine Week, ProPublica, a nonprofit investigative
    journalism center, took our data and created an easily
    searchable online data base of these exemptions and launched it
    this week. Why protect the identity of honeybee handlers or
    watermelon growers, or certain pigmy owls at a particular
    national park or more significantly, losing contract bids
    submitted through competitive bids for Federal contracts?
    Separate (b)(3) statutes bar the disclosure of all these
    things.
        Our hope is to learn from readers when these exemptions are
    used and when they are abused. We are crowd sourcing oversight
    of FOIA.
        Mr. Chairman, the provision in the Dodd-Frank reform law
    that you successfully opposed with others was just one of these
    (b)(3) exemptions. Let me suggest several steps to better limit
    exemption (b)(3) statutes.
        First, in the House, this committee should receive limited
    referral of the particular provisions within legislation that
    affect FOIA, including (b)(3) statutes.
        Second, in its regular review of legislation, the Office of
    Management and Budget should evaluate an agency's proposed
    (b)(3) exemptions when they are proposed.
        Third, any author, sponsor or reviewer should first assess
    whether existing exemptions would suffice without a new
    exemption or the proposed exemption is justified or any
    foreseeable harm results from disclosure is greater than the
    public benefit from disclosure and if the statute is narrow in
    scope, what is proposed is narrow in scope and specific and
    that there is adequate public notice so we can have an open
    debate about them. These steps would go a long way to avoid
    cutting overbroad or unnecessary holes into FOIA.
        Let me finally turn to the use of technology to better
    track FOIA request responses and agency performance. For the
    public to help improve FOIA, the FOIA process itself should be
    more transparent. We see OGIS as an important part of this and
    they are already helping to clarify the process for requesters
    and provide best practices for agencies.
        At a systemic level, the Justice Department's new FOIA.gov
    is a vast improvement. We hope it grows into a more robust
    system so the public can view past requests and responses,
    agencies can better manage caseloads and we all can track in
    real time the backlogs and whether agencies are staying ahead
    rather than falling behind. Mexico has such a system and it
    makes perfect sense for the United States.
        Thank you, Mr. Chairman, for the opportunity to testify and
    I look forward to your questions.
        [The prepared statement of Mr. Blum follows:]

        [GRAPHIC] [TIFF OMITTED] T7618.015

        [GRAPHIC] [TIFF OMITTED] T7618.016

        [GRAPHIC] [TIFF OMITTED] T7618.017

        [GRAPHIC] [TIFF OMITTED] T7618.018

        [GRAPHIC] [TIFF OMITTED] T7618.019

        [GRAPHIC] [TIFF OMITTED] T7618.020

        [GRAPHIC] [TIFF OMITTED] T7618.021

        Chairman Issa. Thank you.
        Mr. Fitton.

                        STATEMENT OF TOM FITTON

        Mr. Fitton. Thank you, Mr. Chairman, Congressman Cummings.
    We appreciate the renewed focus on transparency by this
    committee.
        Essential to Judicial Watch's anti-corruption and
    transparency mission is the Freedom of Information Act. We have
    nearly 17 years experience in using FOIA to advance the public
    interest and Judicial Watch is without a doubt the most active
    FOIA requester and litigator operating today.
        The American people were promised a new era of transparency
    with the Obama administration. Unfortunately, this promise has
    not been kept. To be clear, the Obama administration is less
    transparent than the Bush administration. We have filed over
    325 FOIA requests with the Obama administration and filed 44
    FOIA lawsuits against the administration to enforce FOIA law.
    Administratively, agencies created additional hurdles and
    stonewalled even the most basic FOIA request during this
    administration.
        The Bush administration was tough and tricky, but the Obama
    administration is tougher and trickier. For instance, we
    recently asked the Transportation Security Administration for
    documents detailing passenger complaints about TSA pat-downs
    and imaging procedures at airports. The response, which is
    attached to my written testimony, TSA asked us to define what
    we meant by complaint. Once we are forced to go to Federal
    court, the Obama administration continues to fight us tooth and
    nail. The litigious approach to FOIA is exactly the same as it
    was in the Bush administration. So one can imagine the
    difficulties we encounter litigating these issues in court
    against the Obama Justice Department.
        Judicial Watch has been digging hard into the role, for
    instance, of political corruption and its impact on
    congressional oversight of Fannie and Freddie, which collapsed
    in 2008. Government has spent upwards of $153 billion on these
    entities and they have taken complete control of them.
        We have asked for documents about political contributions.
    We have asked for other documents. The administration's new
    position under the Federal Housing and Finance Administration
    is that Fannie and Freddie are not agencies subject to FOIA.
    Not one document those agencies have created over the time were
    subject to disclosure under the law, which we believe is
    contrary to public interest and to the law.
        I cannot quite fathom how this administration can want a
    new era of transparency while over $1 trillion in Government
    spending is shielded from practical oversight and scrutiny by
    the American people. I am not only talking about FHFA on that,
    Fannie and Freddie, I am talking about the Treasury Department,
    the Federal Reserve, all the agencies involved in the bailouts.
    This Government is growing by leaps and bounds, for better or
    worse, and FOIA and transparency are simply not keeping up.
        This committee might also be interested to learn the truth
    behind the Obama White House repeatedly trumpeting the release
    of Secret Service White House logs. In fact, the Obama
    administration is refusing to release tens of thousands of
    visitor logs, repeating a Bush administration last ditch legal
    effort that the visitor logs are not subject to the Freedom of
    Information Act. The Secret Service is part of Homeland
    Security. They create the logs. It is obvious they are subject
    to FOIA.
        While the Obama administration attempts to take the high
    ground by voluntarily disclosing them, it shields tens of
    thousands of others from public disclosure in defiance of FOIA
    law.
        In the fall of 2009, we were invited by the Obama White
    House to visit and talk about this very issue. We were told by
    then special counsel to the President, Norm Eisen, who was in
    charge of these issues, will you please publicly praise our
    transparency efforts. It will be good for you and the Obama
    administration. Of course they didn't want to release these
    records to us as they are required under law, so we have filed
    a lawsuit. Don't invite us to your office, you never know what
    is going to happen.
        To date, every court that has reached this issue, there
    have been four court decisions that have said these records are
    subject to FOIA. We even got these records under FOIA from the
    Bush administration. We know now from published reports, White
    House officials have been meeting with lobbyists at a nearby
    Caribou coffee shop across the street to avoid their trumpeted
    voluntary disclosure of logs. They don't want these people
    visiting the White House, so they meet them elsewhere because
    they don't want to tell the American people who they are
    visiting with.
        We have asked for records about the Obamacare waivers.
    Months, not one document. We asked for records about that
    illegal alien who allegedly killed a nun in a drunk driving
    incident. Final report last fall, we asked for the final
    report, we sued. They said they would give it to us in a week.
    Then they told us in the court, that final report is a draft
    report. You can't get the draft report, we are still working on
    the final report. We just got the final report. It was dated
    November 24th. They told us they were working on a final report
    that had been dated 3 months previously. This is the sort of
    gamesmanship and frankly only a government, political appointee
    would come up with that sort of craziness in terms of FOIA
    responses.
        I draw your attention to the end of Exhibit B. We asked for
    the FBI file of Ted Kennedy. It took us four iterations to get
    the final file. In the end, they were proposing, we fought back
    and successfully uncovered, to secure as national security
    information, a comment from 40 years ago by a State Department
    official that Ted Kennedy was a brat. It shows the FBI is not
    above politics in how it evaluates what to release to the
    American people. You can imagine why they would be hesitant to
    release this information.
        As a frequent requester and litigator at Judicial Watch,
    the Obama administration deserves a failing grade on
    transparency. This government is too big and they are not as
    concerned as they should be about the transparency with the
    actual work our Government is doing.
        [The prepared statement of Mr. Fitton follows:]

        [GRAPHIC] [TIFF OMITTED] T7618.022

        [GRAPHIC] [TIFF OMITTED] T7618.023

        [GRAPHIC] [TIFF OMITTED] T7618.024

        [GRAPHIC] [TIFF OMITTED] T7618.025

        [GRAPHIC] [TIFF OMITTED] T7618.026

        [GRAPHIC] [TIFF OMITTED] T7618.027

        [GRAPHIC] [TIFF OMITTED] T7618.028

        [GRAPHIC] [TIFF OMITTED] T7618.029

        [GRAPHIC] [TIFF OMITTED] T7618.030

        [GRAPHIC] [TIFF OMITTED] T7618.031

        [GRAPHIC] [TIFF OMITTED] T7618.032

        [GRAPHIC] [TIFF OMITTED] T7618.033

        [GRAPHIC] [TIFF OMITTED] T7618.034

        Chairman Issa. Thank you.
        For the record, I am sure I was a brat 30 to 40 years ago.
        Mr. Fitton. I am sure we all were. It is not a security
    issue.
        Chairman Issa. It won't be for me.
        Ms. Canterbury.

                     STATEMENT OF ANGELA CANTERBURY

        Ms. Canterbury. Chairman Issa, Ranking Member Cummings,
    members of the committee, thank you for the opportunity to
    testify today.
        I am the Director of Public Policy at the Project on Open
    Government Oversight or POGO, which is an independent,
    nonpartisan watchdog that champions good government reform.
        It is a particular pleasure to be here with you today to
    talk about FOIA, the Freedom of Information Act which for
    nearly 45 years has been a cornerstone for our democracy and
    for open government.
        On day one, President Obama committed to creating an
    unprecedented level of openness in government. This
    administration certainly has put unprecedented energy into this
    goal, but how is the government doing.
        It takes time to build an openness infrastructure and
    change a culture resistant to change and scrutiny. If the
    measure is proactive disclosure of information, there have been
    leaps in innovation. Just this week, the administration
    launched FOIA.gov which has terrific potential for improving
    public access to information like Data.gov, Recovery.gov and
    USASpending.gov.
        However, if FOIA is the yardstick for openness, then we
    haven't gotten very far yet. Some mixed, but overall
    disappointing reviews were delivered this week through
    independent studies. The Knight Survey found that the number of
    agencies that make concrete FOIA reforms jumped form 13 in 2009
    to 49 in 2010. However, they included 90 agencies in their
    survey and 17 were still working on the survey's FOIA requests
    after 117 business days, 4 did not even acknowledge that they
    had received a request.
        The new analysis from the Associated Press also yielded
    mixed results. On a positive note, those studies showed that
    the use of withholding for inter and intra agency information
    or exemption 5 decreased which the administration reported this
    week was a 26 percent drop last year. Also, the administration
    noted that 93 percent of requests were leased in full or part.
        However, the AP also noted that the DHS, Department of
    Homeland Security, cut its backlog by 40 percent in part by
    referring thousands of cases to the State Department. State
    ended up with a backlog twice as big as they had last year. Not
    only is this a shell game but referrals are a major cause for
    delays.
        In sum, the overall picture does not look markedly better
    for FOIA operations and the bottom line is, as Chief Justice
    Roberts recently acknowledged, there are a large number of FOIA
    requests and ``it takes forever to get the documents.''
        However, there are many ways in which this committee can
    improve the status quo through oversight and legislation.
    First, it is time for FOIA to move fully into the digital age,
    making most requests a relic of the past. A first step to
    better serve the public and save money over time would be to
    put online in a common data base all FOIA logs, request
    tracking and the responses. A guiding vision for the future
    should be making all public information available online in a
    timely manner.
        Second, we need better information on how FOIA is working.
    POGO supports the Faster FOIA Act reintroduced by Senators
    Lahey and Cornyn this week to create an independent, bipartisan
    body to study how to improve FOIA. In addition, we need to know
    more about who is reviewing FOIA requests and why, and how this
    impacts disclosure.
        Chairman Issa is investigating possible political
    interference in FOIA at DHA. If founded, these issues are of
    great concern. FOIA should never be used for political purposes
    and the identity or affiliation of a requester should never
    impact the response.
        POGO, however, is also concerned with the involvement of
    government contractors in FOIA at DHS and at other agencies as
    well as the interference with IG independence, all of which
    should be examined and perhaps independently investigated.
        Third, this committee should take a closer look at
    statutory exemptions gone wild. POGO has long been concerned
    about the proliferation and scope of these statutory exemptions
    or (b)(3)'s as well as the lack of oversight. Last year, POGO
    helped to repeal an extremely broad statutory exemption for the
    SEC, along with the chairman and the ranking member, that was
    enacted in the Dodd-Frank bill, the Financial Reform Act.
        The controversy and ultimate repeal of the secrecy
    provision is illustrative of the potential dangers of statutory
    exemptions that sweep too broadly. Hopefully, it also serves as
    a cautionary tale to agencies that might seek unnecessary
    exemptions.
        Fourth, as proposals to replace the exemption thrown out by
    the Supreme Court surface, this committee must resist the
    pressure to substitute it outright. A thoughtful approach must
    be taken. If there is a demonstrated need to protect
    information that existing exemptions no longer cover, it must
    be very carefully considered.
        POGO hopes that you will be vigilant in balancing the
    public's right to know with other interests. Too often overt
    secrecy has not only impaired the promise of FOIA, but also has
    put the American people at risk. Abuse of FOIA over
    classification, quasi-classification and the suppression of
    whistleblowers are the most common tools of secrecy.
        In conclusion, while FOIA is the central mechanism for open
    government, there are several other openness issues ripe for
    legislative reform including the Transparency in Government Act
    introduced today by Ranking Member Cummings, which we support.
        Last, to fulfill a pledge to America, this Congress must
    begin to proactively disclose congressional information,
    serving as a model for the new paradigm of FOIA.
        I thank you and I look forward to the discussion and your
    questions.
        [The prepared statement of Ms. Canterbury follows:]

        [GRAPHIC] [TIFF OMITTED] T7618.035

        [GRAPHIC] [TIFF OMITTED] T7618.036

        [GRAPHIC] [TIFF OMITTED] T7618.037

        [GRAPHIC] [TIFF OMITTED] T7618.038

        [GRAPHIC] [TIFF OMITTED] T7618.039

        [GRAPHIC] [TIFF OMITTED] T7618.040

        [GRAPHIC] [TIFF OMITTED] T7618.041

        [GRAPHIC] [TIFF OMITTED] T7618.042

        [GRAPHIC] [TIFF OMITTED] T7618.043

        [GRAPHIC] [TIFF OMITTED] T7618.044

        Chairman Issa. I thank you and I was with you right up to
    that last part, then it got a little confusing.
        First of all, thank you all. Your statements were great and
    obviously there is some additional material each of you will be
    placing in the record.
        I now recognize myself for 5 minutes.
        I would begin on a sad note for all of you. The
    whistleblower, one of two people who voluntarily came in and
    were interviewed with an attorney from the Department of
    Homeland Security, had her title removed, her office changed
    and her job responsibilities changed or eliminated the very
    next morning.
        So it is this committee's opinion, at least on the
    majority's side, this constitutes a demotion in violation of
    the spirit of the Whistleblower Act and it is our intention to
    openly attempt to get her reinstated and to deal with the
    politicization in this case or the politicization of FOIA
    requests by referring requests and at least at the latest new
    stated truth. I always call it new stated truth because I
    wouldn't want to say someone lied, but the original truth was
    they didn't do it, then they didn't do anything other than send
    them for information, were now down to they didn't delay them
    more than 3 days and we have not yet gotten to exactly how much
    changes or denials came as a result of sending otherwise
    completed FOIA requests to political appointees. That is a
    disappointment I wish I didn't have to bring up today.
        Ms. Nisbet, I am delighted to hear your testimony but I am
    confused, and that happens a lot around here, particularly to
    me. You said, since September 2009, you have handled, a little
    over a year, 541 cases. Our records show that, for example, in
    fiscal year 2009, you mediated 541, correct?
        Ms. Nisbet. Mr. Chairman, it is a little confusing when you
    start talking about those numbers.
        Chairman Issa. Why don't we do this.
        Ms. Nisbet. I am happy to try and clarify as best I can.
        Chairman Issa. Since there is so little time, for the
    record, would you clear up for our committee staff if you have
    processed 541 and the entire FOIA statistics for the government
    for fiscal year 2009 were only 557 received and 612,000
    processed, so your number is substantially similar to the gross
    amount. We would like that resolved for the record.
        Mr. Fitton, I guess my question to you is, in addition to
    what you said, if you would provide the committee with
    additional materials as to specific areas in which we could use
    our powers, either through cooperation or subpoena, to get some
    of the information you believe should most be brought to the
    attention of the Congress, not be brought to you around
    litigation but it is one in which we would be particularly
    interested in seeing what it is they are not showing you. I
    would appreciate it if you would do that for the record.
        Mr. Fitton. Certainly.
        Chairman Issa. Ms. Canterbury, your organization has been
    extremely helpful to all of us, and I thank you for that. Many
    of the organizations do a great deal in Washington and around
    the country. Yours has been proactive in a way that we don't
    always appreciate what we do.
        I wanted to give you something for the record and ask your
    interpretation. We do not make these public out of my office
    currently, but it is a possibility that we would.
        My office received 31,138 inquiries from constituents in
    calendar year 2010. We did that with one legislative respondent
    who answered all of them. They centered around 300 major
    issues. Obviously they are not all different.
        The Department of Justice received 63,682. They used 425
    full-time individuals to do this work costing a total of $60
    million. My one person cost somewhat less.
        I would ask each of you to respond. The biggest thing we
    think matters is that once you answer a question, you now it
    should be answered for one, it should be answered for all. How
    much of that cost across government do you believe would be
    eliminated if in searchable data form, every answer once given
    was made simultaneously available to anyone who wanted to
    search a data base so that those questions would not come in
    again and take a plethora of study to give substantially the
    same information depending upon how clever the questioner was
    versus the answer person?
        Ms. Nisbet. Certainly millions and billions, I would say.
    Over time, very quickly it would add up to a huge amount of
    savings and allow the government to do other things.
        Chairman Issa. I will take you in any order, but Ms.
    Nisbet, since you see so many of these and obviously, you saw
    cases in your 541 that were substantially the same as other
    cases, so you were arbitrating or mediating cases where
    different people were asking for substantially the same
    information, correct?
        Ms. Nisbet. Certainly there are multiple requests from
    different requesters for the same kinds of records. We would
    say absolutely, it would be a great goal and I think there are
    people looking to do exactly as you suggest which is to have
    one place where people can make requests, where they can track
    the responses to them and ultimately all the records that are
    released are available, easily searchable so that people can
    see what is already out there.
        Chairman Issa. Anyone want to comment on that, something
    along the lines of the consolidation of answers?
        Mr. Metcalfe. I would just point out, Chairman Issa, that
    there is indeed an existing statutory mechanism. It is called
    the frequently requested record provision that was added to the
    act in 1996, subsection (a)(2)(d).
        Chairman Issa. And seldom used.
        Mr. Metcalfe. But it provides for that type of thing with a
    numerical threshold, that threshold being the first request is
    processed, records are disclosed and then if the agency either
    believes or receives two more requests at hand, then it is
    obligated by law to make it affirmatively available. There is a
    mechanism in the law that is at that number. Congress could, of
    course, lessen that number from two or three down to zero.
        Chairman Issa. Thank you. Thank you all.
        Mr. Cummings.
        Mr. Cummings. Thank you very much.
        Mr. Chairman, you started your questioning with some very
    strong allegations and certainly if they were true, this is one
    Member who would be 100 percent with you.
        One of the things I said from the beginning when we first
    began this Congress is that we want to be fair to the folks. I
    think we can put out allegations, they sit out there and the
    press writes them up and a lot of times, some things are
    cleared up later on and still people are harmed. I know that is
    not your intention, so I would like to make two points about
    the letter you sent yesterday alleging retaliation against the
    DHS employee who was interviewed by our committee.
        It appears there are two major factual inaccuracies in the
    letter. First, your letter asserted that this DHS employee was
    demoted. In fact, she had competed for a new Senior Executive
    Service promotion and she did not receive it. A panel of senior
    career and non-career employees conducted a detailed
    competitive process and the person who was selected was better
    qualified according to DHS. We will discover that later on, I
    am sure, and look into that. Committee staff were aware of this
    because they discussed it in several interviews they conducted
    with DHS employees.
        Second, your letter asserts that the DHS employee was
    demoted the day after she conducted her interview with the
    committee staff. This is also incorrect. Her interview with the
    committee was on March 3rd. She was informed that she did not
    receive the SEC promotion on January 10th, nearly 2 months
    earlier. Committee staff also knew this fact because they were
    told on a joint conference call with DHS the day before you
    sent your letter.
        Finally, as a result of these factual inaccuracies, your
    letter assumes conclusions that are not supported by the actual
    evidence. In fact, they appear to directly contradict
    information the committee has already collected. Despite the
    fact the minority staff raised these concerns directly with
    your staff, you chose to send this inaccurate letter anyway.
        Since the March 16th letter is a letter to you, I am going
    to request unanimous consent that the DHS response to your
    letter which was sent last night be entered into the hearing
    record.
        Chairman Issa. I object based on the fact that we have not
    yet received that letter. We certainly will be happy when we
    receive the letter apparently the minority and the
    administration wrote, we look forward to seeing it when it
    arrives and then consider it.
        Mr. Cummings. Thank you.
        Mr. Chairman, I think we have to be very careful. You just
    complimented our public servants and I want to make sure they
    are treated in a fair fashion. I would make that argument
    whether it was employees on that side of the aisle or this side
    of the aisle, no matter where they are. People are human beings
    and they have to go back to their families. People look at
    this, see it on C-span, see their names in the Washington Post
    and then if there is no clarification, it is just out there, it
    is just a headline and that person can be ruined for the rest
    of their lives without the ability to get a job or accomplish
    much of anything. I have seen that happen to too many people. I
    just don't want it to happen to another human being.
        Mr. Metcalfe, on September 23, 2010, President Obama
    addressed the United Nations' General Assembly. In his address,
    he highlighted the importance of a world that fosters openness.
    This is what he said, ``The strongest foundation for human
    progress lies in open economies, open societies and open
    governments. In all parts of the world, we see the promise of
    innovation to make government more open and accountable. When
    we gather back here next year, we should bring specific
    commitments to promote transparency to fight corruption, to
    energize civic engagement, to leverage new technology so that
    we strengthen the foundations of freedom in our own countries
    while living up to the ideals that can light the world.''
        Mr. Metcalfe, in your experience, has any other American
    President done anything at this level to personally promote
    government openness on the world stage?
        Mr. Metcalfe. No, Congressman Cummings. As a matter of
    fact, I think it is fair to say that action by President Obama
    is not only unprecedented, but it goes much further than any
    other President has gone to be involved in fostering
    transparency internationally and promoting the U.S. leadership
    role in that area.
        Not only did he do that in September, but he also in
    November of last year while in India entered into a very
    explicit partnership with that nation aimed at fostering
    openness in government.
        Mr. Cummings. Mr. Chairman, I ask for the 1 minute and 38
    seconds that you got.
        Chairman Issa. Of course.
        Mr. Cummings. Ms. Canterbury, Danielle Brian, the executive
    director of your organization, the Project on Government
    Oversight, made this statement about President Obama's efforts.
    She said, ``There is no question this is the first President in
    my experience who has personally elevated open government
    issues to the extent that Obama has.'' Are you familiar with
    that statement?
        Ms. Canterbury. Yes, I am, sir, and I would agree with it.
        Mr. Cummings. Do you agree with your President?
        Ms. Canterbury. Yes.
        Mr. Cummings. Another one of your colleagues, Tom Blanton
    is the Director of the National Security Archive at George
    Washington University. This is what he said about the
    President's efforts. ``President Obama is the first President
    to invite transparency advocates into the Oval Office to talk
    about open government.'' In addition, the organizers of the
    National Freedom of Information Day Conference are giving
    President Obama an award this week to honor his deep commitment
    to an open and transparent government. I want to be clear,
    everyone I just quoted also believes much more can be done. I
    want to make it clear that I believe much more can be done.
        Our job is to promote these gains through continued
    oversight and to push for even greater transparency measures in
    Congress. That is why today we introduced the Transparency and
    Openness in Government Act. Ms. Canterbury, our legislation
    consists of five bills that all passed the House overwhelmingly
    with Republican and Democratic support last session but were
    not enacted. I think I heard you say you support that
    legislation?
        Ms. Canterbury. Absolutely, sir, we do.
        Mr. Cummings. Finally, I have about 15 seconds, do you
    think our committee should mark up this legislation at the next
    available opportunity?
        Ms. Canterbury. Yes.
        Chairman Issa. The gentleman's time actually is 32 over the
    additional time we gave you, but thank you very much.
        For everyone's edification, we are going to take one more
    round of questions, we will break and then Mr. Clay will be
    first up when we come back. We will be out for about 15 to 20
    minutes. As soon as somebody is back in the chair, we will
    start again so don't go too far.
        Mr. Walberg.
        Mr. Walberg. Thank you, Mr. Chairman, for that latitude.
    Thank you to the witnesses for being here today and expressing
    desire for sunlight.
        Mr. Blum, let me ask you, you have called the Obama
    administration's Open Government initiatives a ``road map for
    transparency.'' In your opinion, has that road map been
    effectively used by Federal agencies?
        Mr. Blum. Oftentimes, maps get loss, they get put on the
    car seat and the kid rips them up or you stick them in a pocket
    and they are hard to find. I think that some agencies have that
    map and are following it and I think some agencies don't know
    where the map is. I think you see that in some of the
    compliance statistics and I think it is all over the map.
        Mr. Walberg. What are the most egregious examples of
    agencies that have lost the map, use it for a litter box or
    whatever else?
        Mr. Blum. It is hard to come up with specific examples, but
    I think the issues exist today, they existed yesterday, they
    exist in this administration, the last administration and since
    the creation of the FOIA itself. It is the long delays.
        We have one reporter I know of who was working during
    Hurricane Katrina, literally in the floodwaters trying to
    figure out the chemicals that were in those waters because his
    readers were asking him, can we come back, can we come home,
    can we start getting on with our lives? He was trying to give
    them that answer. Through FOIA, he couldn't get an answer.
        In fact, he actually moved because he had to evacuate and
    let the agencies he had requested information from have his new
    address, send this information here and they sent it back to
    the address of his destroyed home. It is really these
    longstanding problems.
        Ms. Nisbet, OGIS should not have to remind agencies to
    return phone calls or to even pick up the phone.
        Mr. Walberg. Thank you.
        Mr. Fitton, your organization's Web site includes an
    archive of documents that you have received under FOIA. You
    make these documents electronically available to any member of
    the public. Do you think the government should also provide
    electronic access to already released records?
        Mr. Fitton. Yes, but that only goes so far. My concern is
    that these document dumps that the administration is
    highlighting are documents that you largely can get if you know
    where to look otherwise and are not a matter of great public
    interest.
        The FOIA fights we get into are matters of public
    controversy. That is where the rubber meets the road on FOIA.
    If the agencies release information that makes them look bad or
    may highlight an issue they don't want to talk about, on that
    issue that is where we face the most resistance.
        We appreciate the additional information on the internet.
    The government is doing so much, the more on the Internet, the
    better, but on issues of political controversy or corruption
    allegations, you are not going to find that on the Internet. No
    agency is going to put it up there.
        Normally, I would think you would get the email traffic,
    for instance, that you want about a specific decision. That is
    not necessarily going to be posted on the internet. I don't
    know if it is a good idea to do that.
        Mr. Walberg. Should they be?
        Mr. Fitton. I don't know. Do we think that Government
    bureaucrats should post their emails almost immediately after
    sending them? Maybe. The Government is asking us to do a lot of
    things, requiring us to give them a lot of information, has a
    lot of control, but the accountability is lacking, especially
    given the dramatic expansion of Government we have seen
    recently.
        Mr. Walberg. Do you have some examples of cooperative
    agencies and how they have worked to meet not only the rule of
    the law, but the spirit of the law your requests?
        Mr. Fitton. The letter of the law is almost never followed.
    The State Department is an interesting agency. They take
    forever to give you a response, the response they give you is
    usually something that you are asking for. The Department of
    Justice is terrible. As I said in my testimony, the financial
    agencies are the worse. The Treasury Department is probably the
    worst in our experience, which is the most troubling given the
    financial crises we have gone through and all the decisions
    that have been made related to the spending of our money to the
    tune of $1 trillion or so, that have gone through Treasury and
    related agencies.
        Mr. Walberg. Thank you, Mr. Chairman. I yield back my time.
        Chairman Issa. I thank the gentleman. As we take a 20
    minute recess, I would note to the ranking rember that by
    unanimous consent, I would ask that both yours and
    corresponding letters be placed in the record, along with any
    supplementals you might want to put in so there may be a
    complete review of what quite frankly is a disagreement about
    somebody getting a demotion but more importantly, of interest
    to all the people who are testifying here today.
        I thank the ranking member.
        Mr. Cummings. Thank you, Mr. Chairman.
        Chairman Issa. We stand in recess until 5 minutes after
    completion of the last vote which I will ask to be posted on
    the monitor so you will know when we are done.
        We stand recessed.
        [Recess.]
        Chairman Issa. Thank you all for your patience.
        The Chair will now recognize the gentleman from Missouri
    for 5 minutes.
        Mr. Clay. Thank you, Mr. Chairman.
        Let me start with Ms. Nisbet. As the FOIA ombudsman, Ms.
    Nisbet, you and your staff have done a great job in handling
    and disposing of hundreds of cases. As an original sponsor of
    the bill that created OGIS, I am proud of the important work
    that you are doing, but your role is so critical and ultimately
    saves the taxpayers so much money that I want to make sure you
    have what you need. Is your funding and staffing sufficient to
    meet your responsibilities under the law?
        Ms. Nisbet. Thank you, Mr. Clay, for those very kind
    remarks.
        We are working hard, we have a staff of six professionals
    who are very dedicated and hardworking, and I think in this
    budgetary environment, we know we are going to our very best to
    make the most with what we have.
        Mr. Clay. With whatever amount you have, you are going to
    accomplish your mission then?
        Ms. Nisbet. Yes, sir.
        Mr. Clay. Thank you for that.
        Ms. Nisbet, we have heard unsubstantiated charges of
    politicization in the FOIA process at some agencies. Are there
    legitimate reasons why top agency executives and others should
    know about certain FOIA requests before the releases are made
    and isn't this very different from having appointees make
    release decisions?
        Ms. Nisbet. Mr. Clay, I think you stated that very well. We
    would have to agree that there is a difference and notice is
    one thing and approval is another. I understand the committee
    is looking into this.
        Mr. Clay. Thank you for your response.
        Mr. Blum, you say the President's FOIA efforts show impact
    but that some agencies have been slow to improve. These
    problems go back to at least the previous administration which
    was significantly less transparent and much less willing to
    disclose. In fact, the previous administration changed the
    official presumption to withholding rather than disclosing.
    Thankfully, President Obama reversed that presumption back to
    disclosure to what it was during the Clinton administration.
        Do you think the issue is simple agency reluctance to
    change or agency culture to not disclose, or are there other
    reasons for those agencies who are not complying with the
    President's clear direction?
        Mr. Blum. How much time do we have here? I think there are
    many reasons. I think in some cases, it is that there is a
    reluctance to disclose when there is doubt because there is a
    perception that there is greater consequences if you disclose
    something that you shouldn't. If you don't disclose it, even
    though you probably should, who is going to find out, the
    requester, maybe not others.
        I think there is a reluctance to disclose that is inherent.
    I think there is a lack of funding. Ms. Nisbet answered the
    question about her funding, but when you look at the CBO score
    for her office, it was many times more. They estimated it would
    take her many times more, much more money for her to actually
    do the job than she actually has. I think that is an important
    factor as well. I think that is true for agencies as well.
        I also think that the system does need to be changed so
    that you create more efficiencies. Once a request has been
    responded to, get those records up online, make them
    searchable.
        Mr. Clay. It sounds to me like statutory (b)(3) exemptions
    are more problematic and responsible for more denials, is that
    correct?
        Mr. Blum. From the numbers that I saw in the studies, yes.
        Mr. Clay. On top of your good work to make the public aware
    of these varied exemptions, what do you recommend we do to fix
    the problem?
        Mr. Blum. I think if this committee could take a hard look
    at these exemptions when they are proposed, make sure they are
    absolutely necessary, that they are narrowly described, that
    they don't cover additional information, make sure the drafting
    is narrow, make sure they are publicly justified and make sure
    we all have a chance to weigh in. I think that would help. I
    think there needs to be awareness of what FOIA is amongst all
    the committees of Congress.
        Mr. Clay. Critics have accused this administration of being
    more secretive than the previous one. Do you find that to be
    accurate?
        Mr. Blum. I don't think it is the place of our coalition to
    try to answer that question.
        Mr. Clay. Thank you and I yield back.
        Chairman Issa. I thank the gentleman.
        The Chair now recognizes the gentleman from Arizona, Dr.
    Gosar, for 5 minutes.
        Mr. Gosar. To the panel, outside of circulated memos, what
    true or real hard core pursuits of FOIA enforcement have you
    seen from this administration and Department of Justice? I
    would like to start with Ms. Nisbet.
        Ms. Nisbet. I do know all FOIA professionals in government
    in the executive branch agencies have received guidance on the
    President's memos, on Attorney General Holder's memos, not only
    written guidance but FOIA training which is regularly done not
    only by the Department of Justice but by agencies as well on
    their FOIA responsibilities. Certainly the guidance and the
    word is getting out there. It does take time.
        Mr. Gosar. Mr. Metcalfe.
        Mr. Metcalfe. Dr. Gosar, as my written testimony explains
    in even greater detail, I think a major aspect, a critical
    aspect of implementation is being able to show examples,
    concrete examples so people at other agencies can see what
    actually has occurred first and foremost in litigation, perfect
    opportunity for examples, and then even examples of actual
    discretionary disclosures that have been made under the
    foreseeable harm standard at particular agencies, especially at
    the Department of Justice, the lead.
        That is a major part of implementation that I think has
    been lacking. It probably will come in time. It almost has to
    as a matter of good common sense but the fact that we are here
    2 years after the fact, even on the Holder memorandum, and
    there has not been one litigation case cited despite people in
    the openness in government community clamoring for that, where
    that has taken place is telling. It stands in very stark
    contrast with what happened and what I know firsthand happened
    in the implementation of the Reno memorandum during the Clinton
    administration.
        Mr. Gosar. From your expertise here, we have seen an
    unprecedented tactic of choosing laws to uphold and ignore.
    Arizona is a perfect example of that. I am from Arizona, for
    your information. Do you see an ability, something we could do
    to have better access and revitalize America's access to FOIA,
    that the administration and the Department of Justice could do?
        Mr. Metcalfe. When you use the word we, Dr. Gosar, do you
    mean this committee first and foremost?
        Mr. Gosar. Yes.
        Mr. Metcalfe. I think a very simple step this committee
    could take right away with respect to the exemption 3 statutes
    is to focus on the roughly half of them that our academic study
    showed do not qualify as exemption 3 statutes to begin with.
    That would be an easy hit, so to speak. You could buildupon the
    research that we did. Beyond that, the Department of Justice
    could follow more the model of what was done during the Clinton
    years to implement by example. That is just a key thing that
    doesn't seem to be there.
        Mr. Gosar. If each one of you had to pick an agency, which
    is the worst in compliance with FOIA? Ms. Nisbet.
        Ms. Nisbet. Dr. Gosar, that is a very tough question to ask
    and I am not sure that I feel comfortable answering it. We are
    still looking at agencies. We are very new, we are still really
    beginning to implement our mission.
        Mr. Gosar. I would like to see us really pursue this
    because this is very important to the American public. Mr.
    Metcalfe, do you know?
        Ms. Nisbet. Dr. Gosar, may I just add I am going to echo
    what Mr. Metcalfe just said. That is, this committee looking at
    FOIA, looking at the issues of transparency and openness is
    very, very important and really sends a strong message. I thank
    you for it.
        Mr. Gosar. I would like to take it a step further because
    in the real world, mainstream America, when we see an example
    made and reteach an agency how to do something, that makes a
    stronger vantage point for everybody to follow. That is why I
    am asking the question. Mr. Metcalfe, one word, which agency?
        Mr. Metcalfe. Again it is difficult to single out someone,
    but I can tell you that prior to the time I retired in January
    2007, I was most disappointed by the Department of Treasury
    which has plummeted precipitously prior to that in the quality
    and effectiveness of its FOIA performance. Since then, I am not
    sure that has changed.
        Mr. Gosar. Mr. Blum.
        Mr. Blum. I think it would be no surprise that I say,
    representing news media groups, that depending on the issue and
    the hot news at the time, you are going to have difficulty.
    Over the last decade, the post-9/11 environment, and two wars,
    the Defense Department and other intelligence agencies were
    very difficult because reporters were trying to get information
    from them.
        Now, as the attention turns more to financial information
    and conflicts over access, that is an area of concern.
        As a quick example, to echo what these two witnesses are
    saying, the Defense Department is very good in the process, not
    too much drops between the cracks, they will tell you no
    quickly.
        Mr. Gosar. Ms. Canterbury, real quick.
        Ms. Canterbury. I haven't looked at the numbers to give you
    a specific cite for which agency is doing the worse, however,
    in our experience, we have had lots of trouble at the SEC that
    requires more investigation and also the Department of Homeland
    Security. Currently there are several troubling issues around
    their FOIA practices including how they are using contractors
    in the process.
        If I could for a second address your previous question
    about things the administration has done on FOIA, I think in
    addition to the directives, the memoranda, the guidance and the
    work that is being done at OGIS, the Open Government directive
    has also created a sort of open government infrastructure where
    FOIA has played a large role, it has been featured. The
    agencies when they prepare their Open Government plans, many of
    them, if not all, had some FOIA improvement component.
        I would say we weren't completely pleased with POGO's
    initial Open government plans. We are part of a review process,
    an independent look at those plans, but we are just beginning
    and I think improvements have already been made not only on
    those plans but in the implementation of the Open Government
    directive and the President's memorandum on FOIA.
        Mr. Gosar. Thank you, Mr. Chairman.
        Chairman Issa. Thank you, Dr. Gosar.
        The chair takes pleasure in recognizing the former chairman
    of the full committee for 5 minutes, Mr. Towns.
        Mr. Towns. Thank you very much, Mr. Chairman. Let me thank
    you and the ranking member for holding this hearing because I
    think the timing is pretty good because this is Sunshine Week.
    To have this hearing in Sunshine Week is very, very important.
        Let me begin with you, Ms. Nisbet. FOIA has nine built-in
    exemptions of information that cannot be disclosed under a FOIA
    request, correct?
        Ms. Nisbet. Mr. Towns, there are nine exemptions, but they
    do not all necessarily require that information be withheld.
    Some of them do allow some discretion by the agency. I will
    give you an example.
        Mr. Towns. Please do.
        Ms. Nisbet. Exemption 1 is national security information.
    If information is properly classified pursuant to the Executive
    order on national security information, agency officials are
    not free to just release it. In fact, they are prohibited from
    doing that. They have to be extremely careful in the way they
    handle that.
        Under other exceptions, for example, exemption 5, which
    incorporates certain privileges in civil discovery, and
    typically is thought of as including deliberative process
    privilege or executive privilege, attorney work product,
    attorney-client privilege, that is an exemption the courts have
    long held, does allow the Government to decide whether or not
    it wants to essentially invoke the privilege so that
    information particularly after the passage of time might be
    very appropriate for disclosure. It does not have to be
    withheld.
        Mr. Towns. Thank you.
        I understand that outside of FOIA, there are over 200 other
    exemptions of information that cannot be disclosed under FOIA
    that were written into laws passed by this Congress, is that
    right?
        Ms. Nisbet. I think the number of statutes that would be
    considered to fall within exemption 3, which incorporates other
    statutes, is really a number that we not all quite sure about.
    In fact, I think that is something this committee could look
    at, what those statutes are and whether or not they are
    properly being used.
        Mr. Towns. I am committed to open government and I am also
    committed to closing some of these exemptions such as the one
    Chairman Issa and I completed last Congress in the SEC
    exemption. My question is, can OGIS, your agency, track new
    exemptions contained in legislation before they actually become
    law? Can you do that?
        Ms. Nisbet. I would like to say that we can and certainly,
    we would try to do that particularly in partnership with some
    of the other organizations that do track those things, but my
    understanding from talking to people who work very closely with
    all of you on the Hill is that it is sometimes very difficult
    to spot those things before they go through, so it really takes
    some vigilance from you all as well as from the executive
    branch.
        Mr. Towns. Mr. Blum, you made the suggestion that any new
    FOIA disclosure exemptions be referred to the committee for
    review before any new law is passed or any statute is amended.
    Do you agree with this suggestion?
        Mr. Blum. Yes, we have advocated this position for many
    years.
        Mr. Towns. Mr. Chairman, on that note, I yield back and say
    I really appreciate the fact that you are having this hearing.
    I think it is a very important hearing because we are talking
    about transparency and opening up government. I think in order
    to do it, we would have to be involved in the process and we
    all have to work together to get where we need to go. I want to
    thank you and the ranking member.
        Chairman Issa. Will the gentleman yield?
        Mr. Towns. I would be delighted to yield.
        Chairman Issa. Thank you for your friendship and support in
    the last Congress and I commit to you not only are we going to
    do it, but I have arranged with each of the subcommittee
    chairmen that they are going to hold at least one FOIA related
    to their portion of the government and we will deconflict it,
    so we will have at least seven subcommittee hearings on this.
        We are also forming a working group which I am very
    confident you will be joining along with other parties, some of
    whom are at the table today, to begin the process of fashioning
    FOIA reform not just to deal with one exemption but to look at
    all of them that presently exist.
        Thank you for your leadership in the past and I look
    forward to us working together throughout this Congress.
        Mr. Towns. Thank you very much, Mr. Chairman. I look
    forward to working with you.
        Chairman Issa. Thank you.
        Does the ranking member have additional questions?
        Mr. Cummings. None.
        Chairman Issa. I want to thank our panel of witnesses for
    your testimony. I want you to know that the record will remain
    open for 5 legislative days. If any of you need additional time
    to respond to questions or to revise and extend things you may
    have said, please let the committee know and the chairman and
    ranking member, by unanimous consent, will extend that to allow
    your information to get in. This is extremely important.
        I would close by asking, are all of you willing to come
    back again if so invited?
        Ms. Canterbury. Absolutely.
        Chairman Issa. Thank you.
        We stand adjourned.
        [Whereupon, at 11:23 a.m., the committee was adjourned.]