[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
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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:]
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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
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:]
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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:]
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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
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:]
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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
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:]
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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
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:]
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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
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.]