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




                               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

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                 DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland, 
JOHN L. MICA, Florida                    Ranking Minority Member
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
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
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

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



                        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, 
    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 
    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 
    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 
    [The prepared statement of Hon. Darrell E. Issa follows:]

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    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 
    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 
    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 
    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 
    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.

                      GOVERNMENT OVERSIGHT


    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 
    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 
    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 
    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:]

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    Chairman Issa. Thank you.
    Mr. Metcalfe.


    Mr. Metcalfe. Good morning, Mr. Chairman and members of the 
    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 
    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 
    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 
    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:]

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    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 
    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 
    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 
    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:]

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    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 
    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 
    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 
    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 
    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:]

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    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 
    Chairman Issa. It won't be for me.
    Ms. 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 
    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 
    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 
    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 
    [The prepared statement of Ms. Canterbury follows:]

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    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 
    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 
    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 
    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 
    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.
    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 
    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 
    Mr. Clay. It sounds to me like statutory (b)(3) exemptions 
are more problematic and responsible for more denials, is that 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.]