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






 WHY ISN'T THE DEPARTMENT OF HOMELAND SECURITY MEETING THE PRESIDENT'S 
                           STANDARD ON FOIA?

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

                                HEARING

                               before the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 31, 2011

                               __________

                           Serial No. 112-22

                               __________

Printed for the use of the Committee on Oversight and Government 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 31, 2011...................................     1
Statement of:
    Callahan, Mary Ellen, Chief Privacy Officer, the Privacy 
      Office, U.S. Department of Homeland Security; and Ivan 
      Fong, General Counsel, Office of the General Counsel, U.S. 
      Department of Homeland Security............................    10
        Callahan, Mary Ellen.....................................    10
        Fong, Ivan...............................................    20
    Edwards, Charles, Acting Inspector General, U.S. Department 
      of Homeland Security; and John Verdi, senior counsel, 
      director of Open Government Project, Electronic Privacy 
      Information Center.........................................    59
        Edwards, Charles.........................................    59
        Verdi, John..............................................    69
Letters, statements, etc., submitted for the record by:
    Callahan, Mary Ellen, Chief Privacy Officer, the Privacy 
      Office, U.S. Department of Homeland Security, prepared 
      statement of...............................................    13
    Connolly, Hon. Gerald E., a Representative in Congress from 
      the State of Virginia, prepared statement of...............   129
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............     8
    Edwards, Charles, Acting Inspector General, U.S. Department 
      of Homeland Security, prepared statement of................    61
    Fong, Ivan, General Counsel, Office of the General Counsel, 
      U.S. Department of Homeland Security, prepared statement of    22
    Issa, Hon. Darrell E., a Representative in Congress from the 
      State of California, prepared statement of.................     3
    Towns, Hon. Edolphus, a Representative in Congress from the 
      State of New York, prepared statement of...................   127
    Verdi, John, senior counsel, director of Open Government 
      Project, Electronic Privacy Information Center, prepared 
      statement of...............................................    71

 
 WHY ISN'T THE DEPARTMENT OF HOMELAND SECURITY MEETING THE PRESIDENT'S 
                           STANDARD ON FOIA?

                              ----------                              


                        THURSDAY, MARCH 31, 2011

                          House of Representatives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:35 a.m., in 
room 2154, Rayburn House Office Building, Hon. Darrell E. Issa 
(chairman of the committee) presiding.
    Present: Representatives Issa, Burton, Platts, McHenry, 
Jordan, Chaffetz, Walberg, Lankford, Amash, Buerkle, Meehan, 
DesJarlais, Gowdy, Ross, Farenthold, Cummings, Towns, Norton, 
Tierney, Connolly, Quigley, Davis, and Welch.
    Staff present: Steve Castor, chief counsel, investigations; 
Jonathan Skladany, senior investigative counsel; Jessica Laux 
and Rafael Maryahin, counsels; Jean Humbrecht and John Ohly, 
professional staff members; Molly Boyl, parliamentarian; Ashley 
Etienne, director of communications; Kate Dunbar, staff 
assistant; Adam Fromm, director of Member liaison and floor 
operations; Linda Good, chief clerk; Laura Rush, deputy chief 
clerk; Dave Rapallo, minority staff director; Suzanne Sachsman 
Grooms, minority chief counsel; Krista Boyd, minority counsel; 
Adam Miles and Amy Miller, minority professional staff member; 
Lucinda Lessley, policy director; and Carla Hultberg, minority 
chief clerk.
    Chairman Issa. This hearing will come to order. The full 
committee hearing is on Why Isn't the Department of Homeland 
Security Meeting the Presidential Standard For FOIA? I hope by 
the end of today we'll find that it wasn't, but it is now.
    It is a policy of the committee to have our mission 
statement in our opening. So with that, the Oversight 
Committee, we exist to secure two fundamental principals: 
First, Americans have a right to know the money Washington 
takes from them is well spent. And second, Americans deserve an 
efficient, effective government that works for them. Our duty 
on the Oversight and Government Reform committee is to protect 
these rights. Our solemn responsibility 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 Federal 
bureaucracy. This is the mission of the Oversight and 
Government Reform committee.
    Today's hearing follows an 8-month investigation into what 
we believe are abuses of procedures at Department of Homeland 
Security. This matter could have been resolved in July 2010 
when DHS first was confronted with allegations of political 
interference with FOIA process. I might add that came from the 
Associated Press and others who looked into this.
    The Chief Privacy Officer we believe misled committee staff 
in 2010 briefing. If not for a whistleblower, the truth of the 
matter may never have come to light. That whistleblower was 
asked to clear her office, lost her job, and title and 
responsibility, was moved to a smaller office with narrower 
responsibility the day after she testified. That concerns us 
that the Department of Homeland Security is not taking the 
responsibility to the hard-working men and women in the FOIA 
Department to this day.
    The truth of this matter is that the Secretary's political 
staff did approve significant releases, they delayed responses, 
they withheld documents, they conducted weak searches. And by 
that, I mean non professionals searched their own documents, 
using their own selected key words, and did not, in fact, avail 
themselves of the career professionals who were there long 
before them and know the system.
    Documents and witness testimonies show that the Chief 
Privacy Officer statements from September 2010 are 
indefensible. Yet several of them appear in her testimony at 
this hearing today. She continues to insist that the policy 
implemented in September 2009 was intended to merely make 
political staff aware of significant releases. The bottom line 
is, responses could not go out the door until a political 
appointee said so. And the problem that the Department has not 
accepted accountability for. The disparity between the 
Department's FOIA compliance and the President's promise about 
transparency and accountability is stark.
    The committee is committed to getting to the bottom of the 
abuses of DHS and making sure that the politicization of the 
transparency issue does not metastasize--that word I can do--
throughout the Federal bureaucracy.
    The chair is further concerned that there was a requirement 
we discovered through whistleblower and documents that, in 
fact, one of the most important issues that came wasn't just 
the document related to FOIA, but, in fact, who was sending it, 
whether it was a political individual or the press. That wreaks 
of Nixonian enemies list, and this committee will not tolerate 
it.
    [The prepared statement of Hon. Darrell E. Issa follows:]



    
    Chairman Issa. With that, I recognize the ranking member 
for his opening statement.
    Mr. Cummings. I thank the chairman for calling this 
hearing. Mr. Chairman, I've said it before and I'll say it 
again, my goal is to always be as constructive as possible, so 
let me start with what I think we do agree on. First, I think 
you and I agree with President Obama's decision on his first 
day in office to reverse 8 years of previous administration's 
FOIA policy. To adopt a presumption in favor of disclosure and 
to renew the Federal Government's commitment to FOIA.
    I think we would also agree that the process used by DHS to 
review certain FOIA responses in 2009, 2010 was not efficient. 
Sometimes led to delays and caused confusion about roles and 
responsibilities that resulted in our interoffice tension at 
DHS.
    Finally, I think we can agree that since then, DHS has made 
significant improvements, but it must continue to take 
additional steps to fully address these concerns and I am 
convinced that we can always do better.
    Despite some areas of agreement, however, we part ways when 
you make extreme accusations that are not supported by the 
documents, not supported by the interviews, and not supported 
by the investigation conducted by the DHS inspector general's 
office. Over and over again, you've claimed that DHS officials 
are making FOIA decisions based on partisan political 
considerations. In July, you claimed DHS, ``Ignored the intent 
of Congress and politicized the FOIA process.'' In August, 
again, you claimed that political appointees at DHS, 
``Inappropriately injecting partisan, political considerations 
into the process.''
    You continue to make these accusations today. Even though 
the committee has concluded interviews--conducted interviews 
and gathered documents that show the opposite to be true. The 
report you released yesterday accused DHS officials of, 
``Illegal politicization.'' It claimed that political 
considerations were an important factor in the process. And 
without requesting a single document from the previous 
administration, the report concluded that the FOIA process is 
now, ``More politicized than when President Obama took 
office.''
    These extreme accusations are unsubstantiated. In 
preparation for today's hearing my staff examined eight 
different allegations in detail. They reviewed the documents 
produced to the committee, as well as the transcripts of 
interviews conducted by committee staff. We found no evidence 
that DHS withheld any information for partisan political 
purposes. We found no evidence that FOIA requesters received 
different treatment based on their political affiliation. And 
we found no evidence that DHS officials implemented the FOIA 
process to advance partisan political objectives.
    In every instance we examined, information was withheld 
only with the approval of either the FOIA office or the general 
counsel's office. This is not just our assessment and I repeat 
that, this is not just our assessment. This is also the 
conclusion of a DHS inspector general, which issued a report 
yesterday refuting these specific allegations. This is what the 
IG investigator said, ``After reviewing information and 
interviewing DHS FOIA experts, we determined that the 
significant request review process did not, did not prohibit 
the eventual release of information.'' And it goes on to say, 
``None of this information demonstrated that the Office of the 
Secretary prohibited the eventual release of information under 
FOIA. Information we obtained from FOIA, the FOIA staff and our 
review of documents corroborates this assessment.'' It goes on 
to say, ``No FOIA officer said that the requesters were 
disadvantaged because of their political party or particular 
area of interest.''
    Mr. Chairman, our committee has a great opportunity to help 
Federal agencies as they strive to achieve President Obama's 
high standard. We must also have an obligation to conduct 
oversight that is responsible, and indeed fair. In the long 
run, as I said many times, we are just as concerned about 
government running well as you are. And it is just as important 
to us as it is to you, because we are Americans too and we want 
our constituents to be served well. That's what this is all 
about, this is the all-American way. It is not about a 
Republican way, it is not about a Democratic way, it is about 
the American way. And so with that, Mr. Chairman, I want to 
thank you again for holding this hearing, and with that, I 
yield back.
    [The prepared statement of Hon. Elijah E. Cummings 
follows:]




    Chairman Issa. I thank the gentleman, I thank him for using 
Chuck Schumer's extreme word the appropriate amount of times.
    Members may have 7 days in which to submit opening 
statements and include extraneous information into the record. 
Pursuant to committee rules, all members are to be sworn, would 
you please rise to take the oath?
    [Witnesses sworn.]
    Chairman Issa. Let the record indicate both witnesses are 
in the affirmative.
    In order to allow time for discussion, this committee has a 
longstanding policy of asking you to--your entire opening 
statements be placed in the record. We would ask you to stay as 
close as you can to within 5 minutes. I don't cut people off 
mid sentence, but if I think you get to the end of a paragraph, 
I will.
    We expect to have only one round of questioning unless 
there is a specific request for a second round. And our goal is 
to make this factual and succinct, so I will be pretty heavy 
handed with people on this side. If someone runs to where you 
see a red light on during questioning and they still haven't 
gotten to the question, you may see a gavel and you won't have 
to answer. So it is fair warning to both sides that we want to 
keep you within your time. We also want Members here to ask 
questions so that you have proper time to respond.
    Additionally, we are not prohibited from having votes. If 
we have votes, we will wait until about 5 to 10 minutes after 
the vote has been called because the first one is 15. We will 
recess and as soon as there's a two-person working group back 
here we will reconvene, even if I'm not back here, whoever the 
senior Republican is, we will commence so that we can be 
cognizant of your time and schedule.
    I didn't want to make any mistakes on the name even though 
they are in front of me, the chair now recognizes our first 
panel, Ms. Mary Ellen Callahan is the Chief Privacy Officer of 
Department of Homeland Security, and Mr. Ivan Fong is the 
general counsel to the Department of Homeland Security. We are 
pleased to have both of you here today and with that, ladies 
first.

 STATEMENTS OF MARY ELLEN CALLAHAN, CHIEF PRIVACY OFFICER, THE 
PRIVACY OFFICE, U.S. DEPARTMENT OF HOMELAND SECURITY; AND IVAN 
  FONG, GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

                STATEMENT OF MARY ELLEN CALLAHAN

    Ms. Callahan. Thank you, sir. Good morning Chairman Issa, 
Ranking Member Cummings and distinguished members of the 
committee. I am Mary Ellen Callahan, the chief FOIA officer and 
chief privacy officer at the Department of Homeland Security. 
My office administers policies, procedures, programs to ensure 
that the Department complies with the Freedom of Information 
Act and the Privacy Act. I appreciate the opportunity to appear 
before you today to discuss the Department's Freedom of 
Information Act processing and policy, both past and present.
    Two years ago, the Department faced a backlog of more than 
over 74,000 FOIA requests. We began to work immediately to 
address the issue and have had success. Under this 
administration, we have reduced the backlog by 84 percent, for 
more than 63,000 FOIA requests. In fiscal year 2010 alone, DHS 
reduced its backlog by 40 percent, eclipsing both the 
governmentwide open government directives instruction to reduce 
the FOIA backlog by 10 percent each year, as well as DHS's own 
open government plans goal of a 15 percent reduction for the 
fiscal year.
    In fiscal year 2010, 650, less than one half of 1 percent 
of the more 138,000 FOIA requests processed, were deemed 
significant by career FOIA officers pursuant to the standards 
that were established at the Department in 2006. The 
significant requests include those related to ongoing 
litigation, related to sensitive topics, requests made by the 
media and requests related to Presidential or agency 
priorities. In these relatively few cases, senior department 
management was provided an opportunity to become aware of the 
contents of a release prior to its issuance to the public. To 
enable them to respond to inquiries from Members of Congress, 
to enable them to respond to inquiries from their staffs, media 
and the public, and to engage the public on the merits of the 
underlying policy issues.
    The significant FOIA request--the significant FOIA review 
process began after several significant FOIAs were released at 
the beginning of the new administration without notice to 
senior management. These significant FOIA responses related to 
ongoing litigation, records from the previous administration, 
and records from other departments. The bottom line is, that 
basic lack of awareness of significant FOIA responses hinder 
the Department's abilities to manage and oversee the 
Department.
    The transition of where we were then and where we are now 
was not seamless. There were management challenges in 
implementing the awareness process initially. However, we 
recognized these problems at the time and have taken 
significant action to address them. I believe that 
transitioning to the SharePoint system last year represents a 
significant step forward and I believe it is now a system that 
works effectively and efficiently for FOIA professionals in my 
office and for senior management across the Department.
    At the same time we were implementing this awareness 
process, the average number of days it takes the Department to 
process a FOIA request has decreased significantly from 240 
days to 95 days, a record of which the Department is rightfully 
proud.
    There have been allegations that political appointees in 
the Department's front office redacted FOIAs and restricted 
their release. Let me be clear, to my knowledge, no one other 
than a FOIA professional or an attorney in the Office of the 
General Counsel made a substantive change to a proposed FOIA 
release. Further, to my knowledge, no information deemed 
releasable by the FOIA office or the Office of General Counsel, 
has at any point, been withheld and responsive documents have 
neither been abridged nor edited. I would also point the 
committee to the inspector general's independent analysis that 
makes many critical findings, including the significant request 
review process did not prohibit the eventual release of 
information; no FOIA requesters were disadvantaged because of 
their political party or particular area of interest; the 
Office of the Secretary is responsible for overseeing DHS 
operations, and thus is well within its rights to oversee the 
FOIA process; and DHS has made important progress in sharing 
openness, including through proactive disclosure.
    We concur with all six of the IG recommendations. I am 
heartened to see that the inspector general sees the progress 
we have made. We are committed to doing more and we look 
forward to working with the committee on these important 
issues. I'd be happy to take questions, thank you.
    Chairman Issa. Thank you.
    [The prepared statement of Ms. Callahan follows:]




    
    Chairman Issa. Mr. Fong.

                     STATEMENT OF IVAN FONG

    Mr. Fong. Good morning, Mr. Chairman, Ranking Member 
Cummings and distinguished members of this committee. My name 
is Ivan Fong, I am the general counsel of the Department of 
Homeland Security, I appreciate this opportunity to appear 
before you today to discuss the Department of Homeland 
Security's Freedom of Information Act policies.
    As general counsel, I lead and oversee a law department of 
more than 1,800 lawyers in our headquarters and our component 
legal offices. In my leadership capacity, I emphasize the 
important role DHS lawyers play both in advising on and in 
insuring compliance with the law and in setting high standards 
for professional and personal integrity across the Department.
    In the course of performing their duties, headquarters 
attorneys, as well as lawyers in our component legal offices, 
may be called upon to interpret the FOIA statute, and to apply 
its provisions to records collected and processed by the office 
of privacy for possible disclosure in response to FOIA 
requests.
    As you know, FOIA establishes a mechanism that makes 
records held by agencies and departments of the executive 
branch accessible to members of the public, except to the 
extent the records, or portions thereof, are protected from 
disclosure by one of nine statutory exemptions, or by one of 
three special law enforcement record exclusions. The nine 
exemptions included in FOIA reflect Congress' recognition that 
the goal of an informed citizenry, vital to the functioning of 
a democratic society, must sometimes be balanced against other 
important societal goals such as protecting the confidentiality 
of sensitive, personal, commercial and government information.
    This administration has taken significant steps to increase 
openness in government. In January 2009, for example, President 
Obama issued two important memoranda to the heads of executive 
departments and agencies concerning government transparency. In 
his transparency and open government memorandum, he committed 
this administration to, ``Unprecedented level of openness in 
government.'' And in his Freedom of Information Act memorandum, 
he stressed the importance of FOIA stating that it is, ``The 
most prominent expression of a profound national commitment to 
insuring an open government.''
    To reinforce this commitment to transparency, Attorney 
General Holder, in March 2009, issued a guidance memorandum 
that among other things, reiterated the President's call for a 
proactive disclosure in anticipation of public interest. 
Required agencies to consider making partial disclosures 
whenever full disclosure of a record is not possible, and urge 
agencies to create and maintain effective systems for 
responding to requests. Against this backdrop, the Department's 
lawyers provide day-to-day legal advice to the Department's 
chief FOIA officer, her staff and others in headquarters and 
their components who are responsible for responding to FOIA 
requests. In doing so the lawyers who practice in this area 
provide legal advice on specific requests and potentially 
responsive records. And they do so based on their best 
understanding of the facts and their best legal analysis and 
interpretation of the FOIA statute, the relevant case law, and 
applicable guidance.
    With respect to the involvement of the Office of the 
Secretary and other senior department leaders in being informed 
of significant events affecting the Department, including the 
release of significant departmental information, the Secretary 
and her staff have, in my view, clear statutory authority to 
ask questions of, review and manage the operations of all parts 
of the Department, including the privacy office and its 
elements that handle the FOIA process.
    Similarly, the Attorney General's 2009 guidance states in 
relevant part, that responsibility for effective FOIA 
administration belongs to all of us, it is not merely a task 
assigned to an agency's FOIA staff. It is, therefore, my view 
that it is not only legally permissible, but sound managerial 
practice for the Office of the Secretary to be informed of, and 
in coordination with the chief FOIA officer to play a role in 
overseeing the Department's FOIA processes.
    As my colleague, Ms. Callahan, has just described the 
significant FOIA review process has evolved over time to become 
more streamlined and more efficient. Despite some challenges in 
the early implementation of the review and those problems have 
been acknowledged and remedied, the Office of the General 
Counsel will continue to engage with the Department's chief 
FOIA officer and staff across the Department to help ensure 
that we continue to disclose responsive records properly, and 
promptly, and in the spirit of cooperation that adheres to the 
letter and spirit of the President's direction. Thank you very 
much, Mr. Chairman.
    Chairman Issa. Thank you.
    [The prepared statement of Mr. Fong follows:]



    
    Chairman Issa. I will now recognize myself for 5 minutes.
    Ms. Callahan, is AP on your enemies list? I'll take that as 
a no, unless you want to answer. I mean, you know, there has 
been this talk about--in your opening statement about, you 
know, political, political. Yes, there were Members of Congress 
and others who wanted it who have Rs and Ds after their name, 
but it appears as though your office wanted to know if the 
Associated Press wanted something. You wanted days to 
prerelease, or to spin or to decide to take information that 
was sensitive or embarrassing and get it out in some format. 
You wanted days before the Associated Press would have they 
waited weeks or months for.
    So let me just understand this. The words you used, because 
I want to make sure that the words are very careful, because 
what you said to the committee turned out not to be completely 
accurate some time ago. You used the word ``eventual'' 
repeatedly. ``Eventual'' means that a right delayed is not a 
right denied. Do you stand by that position that 3 days, 6 
days, 90 days, they are all OK as long as eventually you comply 
with FOIA? Yes or no, please. Is ``eventual'' good enough? Is a 
delay of 3 days, 30 days or 90 days OK and still compliant with 
FOIA, in your opinion.
    Ms. Callahan. The initial FOIA review process had----
    Chairman Issa. Answer the question please.
    Ms. Callahan. We have made great strides to----
    Chairman Issa. Is a 3-day, 30-day or 90-day all acceptable 
as FOIA compliant? Because you used the word ``eventual'' but, 
in fact, there were clear delays produced by this policy a pre 
alerting as to who wanted what so the political appointees 
could do what they wanted before it got out in some other way. 
So is 3 days, 30 days or 90 days an acceptable delay and still 
compliant with FOIA, yes or no?
    Ms. Callahan. I have very high standards and that did not 
meet my standards.
    Chairman Issa. Mr Fong, you're not answering the question.
    Ms. Callahan. I did, sir. That did not meet my standards.
    Chairman Issa. OK. So you didn't meet the standards, you 
were causing delay, and ``eventual'' should not be a wiggle 
word here in your statement. The fact is, there were delays. 
The IG is saying it did not stop eventual delay, didn't change 
the fact that you were delaying, and it did meet your 
standards. And if the IG were doing their job, you would 
clearly have the need to stop eventual and make it prompt.
    Mr. Fong, you were aware that there were delays produced as 
a result of political appointees receiving this information. 
Did you do anything about it? Did you consider it a problem 
that 3 days, 30 days or 90 days of additional delay occurred 
because political appointees were evaluating the sensitivity of 
a piece of maybe embarrassing information or politically 
sensitive information becoming public?
    Mr. Fong. I believe that it is important for FOIA responses 
to be promptly disclosed. I believe also, though, that the 
Secretary's office has a legitimate interest.
    Chairman Issa. So you believe that a delay in order to 
evaluate the political ramifications and potentially release 
something someone has waited for 90 or 180 days for, release it 
before you even give it to them is OK under FOIA?
    Mr. Fong. No.
    Chairman Issa. That's what was--that's what was possible as 
a result of this policy, wasn't it?
    Mr. Fong. With all respect, Mr. Chairman, that's not what I 
said. I said that it is important for releasable records to be 
released, but I believe though also that the Secretary's office 
has an interest in knowing what is----
    Chairman Issa. Mr. Fong, I asked about the interference, I 
did not ask about the interest. Nobody on this dais, I believe, 
today, will assert that if as a FOIA request was going out 
simultaneously, even the evening before the morning it was sent 
to the offices so they would be aware and be able to develop 
appropriate responses if the very next day it appeared on the 
front page of the New York Times.
    Bottom line, though, is your offices had them days or weeks 
or months beforehand, and in some cases, clearly could have 
spun the story before the facts were given out.
    Let me move on to one thing, put up slide No. 1, there will 
be more slides today, but this one is--it is very hard to read 
that. Do we have--do you have a copy?
    Ms. Callahan. No, we don't.
    Chairman Issa. OK. Would you please give the witnesses a 
copy. Essentially you have an exemption for predecisional 
communication. On the left, you will see the redacted version. 
On the right, you will see--and this was the type of 
information the AP was looking for that they felt this policy 
confounded. It says and, this is for you, Mary Ellen Callahan, 
``Were you concerned that the forwarding of every request on a 
weekly report to the Secretary's political staff would burden 
the staff?'' In other words, that's one of the things redacted.
    Or more specifically it says, ``Not sure what the confusion 
is, but please know this request is coming directly from the 
front office. NOAA is fully briefed. Can you please have your 
staff forward the actual FOIA requests that are included in our 
weekly reports each week so we can refer to them as needed.''
    Now that was redacted. So basically you made a decision, 
the decision is to forward it. A newspaper agency wants 
information, and what I read here is we're redacting about not 
a predecisional process, but a decision that has been made. And 
this was exactly what they wanted to understand. The AP wanted 
to know, and had a right to know, a constitutional obligation 
under freedom of the press, they wanted to know if you were 
doing exactly what you were doing and that information was 
redacted in this. Now you have a copy of it. Please respond and 
my time has expired so we will be brief.
    Ms. Callahan. Actually, Mr. Chairman, with regard to the AP 
request about FOIA processing, my office was recused as is the 
normal practice with--if my office is the direct subject of the 
FOIA request, and so my office did not make that B5 
determination. The Office of the General Counsel did.
    Chairman Issa. OK. So Mr. Fong, you redacted actual 
substantive information that clearly was exactly what the AP 
was looking for, you redacted it, and when they tried to get 
the information, it was not predecisional, it was not executive 
privilege, but it clearly was what they had a right know and we 
are finding out about here today. Would you explain why?
    Mr. Fong. Well, Mr. Chairman, I was not personally involved 
in making this decision, my staff, though, does have expertise 
in this area. I cannot speak to this particular redaction or 
other redactions that were or were not made. I can say, though, 
that there is an administrative appeals process that exists 
precisely to correct such issues and to correct any mistakes. 
My understanding is that these records are going through such 
an appeal, and I believe it would be premature therefore for me 
to opine.
    Chairman Issa. OK. Well, my time has expired. We're going 
to go to the ranking member and--but what I will do is I'm 
going to have copies of all of this delivered to you so you can 
look through them and know them in advance because we have a 
number of these types of records.
    And I think the ranking member would agree with me that, 
quite frankly, it is very hard to appeal a redaction because 
you don't know what you don't know. I yield to the ranking 
member.
    Mr. Cummings. Thank you very much, Mr. Chairman. Let me--
one of the things I have seen in this committee before, and it 
is something that I'm very concerned about is when people come 
before us and you're not allowed to try to answer the question 
that you've been asked.
    So I'm going to go to you, Ms. Callahan, because I realize 
that this is not an easy process, that you're coming before a 
committee and you're probably a little nervous, and people are 
watching this, and there is life after this moment, and you 
have a reputation. And I want to give you a chance to answer 
the question. You tried to, but you weren't permitted to. You 
stated that delays do not meet your high standards, and during 
the delays that Chairman Issa discussed, were officials 
weighing partisan political concerns to your knowledge?
    Ms. Callahan. To my knowledge they were not, sir. And that 
was confirmed by the inspector general's report.
    Mr. Cummings. And what were they doing----
    Ms. Callahan. Sir----
    Mr. Cummings [continuing]. To your knowledge?
    Ms. Callahan. To my knowledge, the front office was wanting 
to have awareness of significant FOIA activities in order to 
engage the public on the underlying merits of the debate. They 
were not delaying it, they may have not had the opportunity to 
review it in a timely fashion, and that did not meet my 
standards, which is why we shifted to the SharePoint system 
described in more detail in my written testimony.
    Mr. Cummings. Now, was it--was the general counsel 
reviewing documents for legal sufficiency so they could meet 
the standards?
    Ms. Callahan. There were at times as I understand some 
documents that had been identified as being insufficiently or 
inappropriately processed. And for that, they went to the 
Office of the General Counsel for a further review as is the 
typical process in the Department of Homeland Security.
    Mr. Cummings. And let me ask you this: Were you taking your 
time in order to ``spin'' stories prior to release of 
documents?
    Ms. Callahan. No, sir. To my knowledge, the Department was 
not engaging in spin. They wanted just awareness of the 
underlying issues in the FOIA releases that they did not 
modify. They just wanted to know what was in the documents.
    Mr. Cummings. And I want to thank you for saying, and I 
know you mean it that you have high standards. We understand 
that you're one person, and you have people who work with you; 
is that correct?
    Ms. Callahan. That is correct, sir.
    Mr. Cummings. Mr. Fong and Ms. Callahan, the chairman has 
repeatedly stated that DHS officials make FOIA decisions based 
on partisan political factors. Last summer, he said political 
appointees inappropriately injecting partisan political 
considerations into the process. And in his report yesterday, 
he said political considerations were an important factor in 
your FOIA decisions. These are serious, very serious, very 
serious allegations. But based on our review of the documents 
and interviews, we could not identify any instances where this 
actually happened.
    So let me ask you directly, are either of you aware of any 
case in which DHS withheld information from FOIA requesters 
based on partisan political considerations?
    Ms. Callahan. I'll answer first, no, sir, I am aware of no 
such circumstance.
    Mr. Cummings. Mr. Fong.
    Mr. Fong. And I am not aware of either.
    Mr. Cummings. The inspector general who will testify on the 
next panel also refuted this allegation. In his report--and 
this is the inspector general, he says, ``after reviewing 
information and interviews the DHS FOIA experts we determined 
that the significant request review process did not prohibit 
the eventual release of information.'' He also said this, ``No 
FOIA officers said that requesters were disadvantaged because 
of their political party or area of interest.'' Are you 
familiar with the IG's finding and do you agree with him?
    Ms. Callahan. Sir, I am familiar the IG's findings and I do 
agree with them, and I appreciate their inspection in this 
matter.
    Mr. Cummings. Well, let me turn to what I think was the 
real problem. Our review found that your two officers were not 
working together as efficiently and effectively as they could. 
In fact, we found there was real tension between the FOIA's 
office and the general counsel's office. And let me give an 
example. On March 3rd, our staff interviews Catherine Papoi?
    Ms. Callahan. Papoi, sir.
    Mr. Cummings. Papoi, who works in Ms. Callahan's office. 
She told our staff that she had serious issues with an attorney 
who handles FOIA requests in your office, Mr. Fong. And when 
Ms. Papoi was asked to describe the problem, she said this, ``I 
do not consider him to have expertise in FOIA. There have been 
several times I have had to educate him on some very basic 
concepts.''
    Mr. Fong, how do you respond to her concern that the 
attorney in your office was not qualified to work on FOIA 
requests?
    Mr. Fong. I disagree with the view, Congressman, that this 
attorney in question was not qualified to respond to her 
requests. As you know, FOIA's a very technical and complex 
area. It is true that he did not practice in this area full-
time, but he oversees a group of lawyers who do. And he has, I 
believe, very good judgment and applied his best understanding 
of the statute and exercised good faith and reasonable 
judgments to the questions that he was presented with.
    Mr. Cummings. So let me be clear. This has nothing to do 
with political issues, these are two career employees who seem 
to have difficulty working together. I think we see that all 
the time, even here on the Hill.
    Ms. Callahan, how about you? How can we expect a FOIA 
process to work when career officials in your office and Mr. 
Fong's office can't work together?
    Ms. Callahan. Sir, we are working to address what our 
reasonable disagreements among others, and I think it is 
important to make sure that we put personality aside and try to 
work to solve this problem. So we recognize it to be a concern 
and we are working diligently on it.
    Mr. Cummings. And finally, let me back this up, as the 
leaders of your two offices, is it your job to get your 
employees to rise above these current tensions and rebuild the 
trust level? And what is your plan to do that? And how do you 
plan to resolve substantive disputes between your officers in 
the future?
    Ms. Callahan. I strive to be a good manager. I make sure 
that indeed these types of issues are not impacting the 
effectiveness of our offices and I have--will work diligently 
to attempt to address that through individual consultations, as 
well as, perhaps, collective ways to resolve personality issues 
not dealing with substance issues.
    Mr. Cummings. Mr. Fong.
    Mr. Fong. Thank you, Mr. Chairman. Those who worked with me 
know that I take my leadership and management responsibilities 
very seriously. I have spent a lot of time in my almost 2 years 
at the Department insuring that our lawyers work well with 
their clients and others around them. I have taken specific 
actions to remedy issues that have arisen. And as you said 
earlier, this is very--this is not unusual for career 
professionals who care deeply about what they do, who are very 
dedicated, hard-working professionals to disagree at times. And 
as you said, I believe they should try to rise above their 
disagreements.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Chairman Issa. Thank you. For the record we have been 
informed that the AP's 9-month old application under the 
administrative objection has not yet been heard. With that, we 
recognize the gentleman from Utah, Mr. Chaffetz.
    Mr. Chaffetz. Thank you, Mr. Chairman.
    Ms. Callahan, I'm going to refer in part to the Associated 
Press report of July 21, 2010. I'd like to read some statements 
from that and get your reaction to them. Tell me if you believe 
them to be true or false. ``If a Member of Congress sought such 
documents, employees were told the specify Democrat or 
Republican.''
    Ms. Callahan. Sir, that is how Congressmen are referred to 
ordinarily. In fact, under the----
    Mr. Chaffetz. But this is a new policy, correct?
    Ms. Callahan. If I could, sir. It actually is not a new 
policy, it was a policy established in 2006, and it is, in 
fact, during the significant--the weekly report in which we 
report these elements.
    Mr. Chaffetz. To the White House, correct?
    Ms. Callahan. Actually, no, to the Department. And then the 
Department summarizes, it may or may not report specific 
elements to the White House. We----
    Mr. Chaffetz. Sorry, but I want to clarify this.
    Ms. Callahan. Yes, sir.
    Mr. Chaffetz. A report that was putting together second 
sentence of your July 7, 2009 issuance from you says, ``The 
privacy office FOIA leadership integrates the information into 
its weekly report to the White House liaison.'' So it was for 
the White House, correct?
    Ms. Callahan. And by integrating it--I don't know what goes 
on with the integration process.
    Mr. Chaffetz. But it was for the White House.
    Ms. Callahan. It may or may not include----
    Mr. Chaffetz. It was for the White House, correct?
    Ms. Callahan. That's the front office process. I did want 
to point out for this weekly significant reporting process, in 
the 2 years that I've been here, I believe a Member of Congress 
has been listed on it once.
    Mr. Chaffetz. Let me read this, starting in the first 
paragraph, ``For at least a year, the Homeland Security 
Department detoured requests for Federal records to senior 
political advisors for highly unusual scrutiny.''
    Ms. Callahan. I disagree with that assessment, sir, as 
demonstrated in my--more thoroughly, in my written testimony. 
It was a process to provide awareness to the senior leadership.
    Mr. Chaffetz. Let me keep going. ``Probing for information 
about the requesters and delaying disclosures deemed too 
politically sensitive. According to nearly 1,000 pages of 
internal e-mails obtained by the Associated Press.''
    Ms. Callahan. As I have discussed with the ranking member 
and as indicated in the inspector general's report, there were 
indeed management challenges with the initial way that we tried 
to do this awareness process. However, political affiliation, 
parties of interest did not play a factor. It was logistical 
issues rather than management challenges, and that's 
demonstrated throughout this inspection.
    Mr. Chaffetz. It certainly seems to be inconsistent with 
your directive of July 7, 2009. Let me read another sentence, 
``The Department abandoned the practice after the Associated 
Press investigated,'' is that true?
    Ms. Callahan. It is not true, absolutely not. The awareness 
cam--the awareness process continues today.
    Mr. Chaffetz. You answered the question, I have a certain 
amount of time.
    Ms. Callahan. Sorry.
    Mr. Chaffetz. Let me keep going. ``Career employees were 
ordered to provide Secretary Janet Napolitano's political staff 
with information about the people who asked for records such as 
where they lived, whether they were private citizens or 
reporters and about organizations where they worked.'' Is that 
true or false?
    Ms. Callahan. Again, this has been a process since 2006 to 
provide awareness and to significant issues that may become in 
the public domain.
    Mr. Chaffetz. Let me read another paragraph. ``Two 
exceptions required White House review, request to see 
documents about spending under the $862 billion stimulus law, 
and the calendars for cabinet members, those required White 
House review,'' is that correct?
    Ms. Callahan. The calendars--anything that has White House 
equities would require White House review. That is----
    Mr. Chaffetz. What is a White House equity? What does that 
mean?
    Ms. Callahan. In the circumstances with the Secretary's 
calendar to the extent that she was in the White House, or that 
was a--disclosing some sort of element. This is a typical 
process of referring FOIA requests to different departments. It 
may be their underlying records. That is a standard process 
throughout the----
    Mr. Chaffetz. The other part of that is under the $862 
billion stimulus; is that correct? Is that part of the White 
House equity? It says ``Two exceptions required White House 
review. Request to see documents about spending under the $862 
billion stimulus law,'' is that correct?
    Ms. Callahan. That is correct.
    Mr. Chaffetz. Why? Why does that require a special White 
House review?
    Ms. Callahan. Sir, I'm the chief FOIA officer; I'm not a 
policy person in this area.
    Mr. Chaffetz. So is that a directive that you got from the 
White House?
    Ms. Callahan. I believe I was instructed by the Office of 
the Secretary to do that, and we processed it----
    Mr. Chaffetz. So the Secretary--who directed you to do 
that? Is that a document that you can provide for us?
    Ms. Callahan. I believe it is in the production. I believe 
it was the deputy chief of staff.
    Mr. Chaffetz. Dep--if it is not in the record, will you 
provide that for us?
    Ms. Callahan. Certainly. I believe it is in the record. And 
it was the deputy chief of staff who instructed us to do so and 
we did so.
    Mr. Chaffetz. One last question. Calendars--let me see, my 
time has expired.
    Chairman Issa. Will the gentleman yield?
    Mr. Chaffetz. Yes.
    Chairman Issa. Who was that one Member of Congress that was 
sent to the White House?
    Ms. Callahan. It wasn't sent to the White House, sir, it 
was listed on the weekly report.
    Chairman Issa. Who was it?
    Ms. Callahan. It was I believe Senator Grassley when he was 
asking for a request, we ended up modifying it and not 
answering via FOIA, but through a different process. Members of 
Congress actually don't file FOIA requests very often, so the 
issue on the Members of Congress is a relatively moot point.
    Chairman Issa. Except, of course, that the White House has 
told us to file FOIA when we're in the minority and not 
responded otherwise.
    We now recognize the former chairman of the full committee, 
Mr. Towns, for 5 minutes.
    Mr. Towns. Thank you very much, Mr. Chairman. Let me begin 
by--first of all, Ms. Callahan, thank you very much for your 
service, we've had an opportunity to follow your record and 
you've done some great things down through the years, and want 
to thank you for that.
    You've been asked many questions about acceptance of delays 
in responding to FOIA. Can you please explain to this committee 
what circumstances or what situations that might delay you in 
responding to FOIA?
    Ms. Callahan. Yes, sir. As you know, we take our FOIA 
responsibilities seriously. At the same time, there are several 
processes and steps that I detail in my written testimony that 
describe the process that every FOIA, the 130,000 FOIAs that 
the Department received last year, each FOIA must go through 
these steps to make sure that, indeed, we have identified the 
Federal records, we have identified the parties who may have 
the information, that we have applied the appropriate 
exemptions, that we have looked at legal issues therein, that 
the process has been reviewed to make sure that indeed there 
isn't any information that is inappropriately disclosed or 
inappropriately redacted.
    And so despite having high standards, the average 
processing time for FOIAs in the Department is 95 days. That 
is, right now, several days more efficient than the Department 
of Justice at 113 days, but it is a standard that we are trying 
to achieve and surpass. So delays are not appropriate for any 
FOIA, and we are trying to mitigate that problem.
    Mr. Towns. Are any of these delays caused by political 
involvement?
    Ms. Callahan. Sir, as I had described in my initial 
testimony and my written testimony, there were some processes 
that were involving the awareness review for the Department, 
but did not involve political activities or instigations as the 
inspector general has indicated. The initial way that we 
started to give the front Office of the Secretary awareness 
into some of the significant FOIAs that may make media 
attention was not up to my standards, and therefore, we have 
modified that process, and I believe now we have a best 
practice in terms of providing awareness, not only to the front 
office, but also to the other FOIA officers, if indeed there 
are FOIA requests that may impact their equities.
    Mr. Towns. Ms. Callahan, can you explain the 2006 directive 
in which FOIA requests are referred to the Secretary's Office, 
could you explain that? And I'm not going to tell you give it 
to me in a yes or no.
    Ms. Callahan. Sir, I can't explain it because I wasn't here 
in 2006, but I understand that it is the ordinary process of 
all administrations to have awareness into significant 
activities in each of the components. My Privacy Office 
provides actually two weekly reports, one on the activities of 
the entire office, and then separately on FOIAs that have been 
provided that may meet these standards for awareness for the 
front office, but I understand it is a typical practice, not 
only across the administrations, but also across the Federal 
Government.
    Mr. Towns. Thank you. Mr. Fong, what do you feel could be 
done to eliminate some of the delays?
    Mr. Fong. I think a lot of what can be done has been done 
in terms of the significant review process. Having it on the 
SharePoint system for 1 day gives time for awareness but does 
not add to delay the process of releasing the documents. I 
think, in general, if we were more coordinated as a Department, 
I think we spend a lot of time as a relatively new Department, 
trying to figure out who may be relevant component program 
individuals, what documents need to get to whom for the FOIA 
professionals to review. Our lawyers are very busy, they are 
hard working, but their plates are full. It takes time to do an 
analysis to gather facts, to make judgments.
    I would also say that while I agree that it is important to 
be prompt, there has been much made of the 20-business day 
timeline which, in my view, is a misnomer if one thinks of it 
as a violation, it merely provides that the agency must make a 
determination within 20 business days, after which a requester 
may appeal, or may seek judicial redress if such a 
determination is not made.
    There are provisions that permit an agency to request an 
extension. And as Ms. Callahan indicated, many agencies take, 
on average, longer than 20 business days to respond to a FOIA 
request.
    So I just want to make clear that while we have an interest 
in releasing promptly, this is a process that courts and others 
have recognized as the Federal Government has become more and 
more complex inherently takes time.
    Mr. Towns. Thank you very much and thank you both for your 
service. I yield back.
    Mr. McHenry [presiding]. I thank the former chairman. And 
now I recognize Mr. Meehan for 5 minutes.
    Mr. Meehan. Thank you, Mr. Chairman. And thank you, Ms. 
Callahan and Mr. Fong, for your appearance here today before 
our committee.
    Ms. Callahan, thank you for your service, you do not have 
an easy job. It's a complex job particularly with a great scope 
of information that is associated not just with the free flow, 
but also at times information that may relate to investigations 
or other kinds--it is not an easy job, but I do note that at 
least the AP has reported in December 2009, that you found that 
there was a level of scrutiny. I think we have had the base 
established here through prior testimony, you understand what 
I'm talking about in the form of the oversight of political 
appointees. You say ``that this level of attention is crazy. I 
really want someone to FOIA this whole damn process.'' What did 
you mean?
    Ms. Callahan. Sir, if I could, that of course was a 
communication with my staff, and I was attempting to support 
them in this process. As I've indicated earlier, the initial 
process for the awareness review was not efficient, and it had 
its management challenges. At the time--therefore, that's why 
we have moved to the SharePoint system that Mr. Fong has 
referenced and I detail in my testimony. And I think that's an 
important element. We were not even technologically able to do 
that in December 2009. In fact, SharePoint didn't come on to my 
office until March 2010. So at the time my--I was discussing 
not about the awareness review, because I continue to believe 
that the Secretary does have important equities and having 
awareness into this, but that the level of detail and paying 
attention to it perhaps was not where I would have put my 
emphasis.
    Mr. Meehan. Is it your testimony then that was purely 
process?
    Ms. Callahan. Yes.
    Mr. Meehan. It was just a question of process?
    Ms. Callahan. Not a question about--not a question--not 
questioning the review itself, but the level of detail, thus 
missing the 3-day window.
    Mr. Meehan. But we established that there is a level of 
review now that goes on in the form of responsibilities for 
political appointees to have to affirmatively indicate as to 
whether or not information is to be released.
    Ms. Callahan. Sir, let me be clear, that process has been 
modified, and we no longer have that process at all. That was 
the initial process. As I have indicated, that has significant 
management challenges. That did not meet my standards and that 
is why the process is modified.
    Mr. Meehan. What's the difference? Well--so this doesn't 
happen at all now? There is no affirmative review by anybody?
    Ms. Callahan. Absolutely not. There is an FYI review. So 
what had happened before is previously, we had no way of 
sharing the FOIAs not only between the front office and my 
office, but also between the components except by e-mail.
    Mr. Meehan. Well, are you making the calculations with 
respect to sensitive information or other kinds of things? 
Let's suppose there is no politics being played here, but there 
is a security interest. Are you responding to this based 
exclusively on the issue of what is in that document from a 
FOIA perspective or is there anybody looking at redaction or 
other kinds of issues?
    Ms. Callahan. So sir, with regard to--the current system, 
if I could just describe the current system it may help explain 
it. The current system we now have an intranet-based system 
where we can upload it, and the FOIA officer can upload it 
directly. And then not only can the people with equities review 
it, but also the other FOIA officers can review it if they have 
equities in it as well. It is accessible in a centralized base. 
And in that way, we send out a notification and say that this 
is--the request has been made let's say----
    Mr. Meehan. So it's a notification process?
    Ms. Callahan. It is a notification----
    Mr. Meehan. There is no more a thumbs-up or affirmative by 
virtue of any other kind of person above you?
    Ms. Callahan. That is correct, sir. And that was changed in 
July 2010. And we believe that this process, it's just a 
notification process. People can look at the underlying 
documents and that has happened a couple of times. Going to 
your question where people have caught either predecisional 
information that may have been sent out, inaccurate, or 
incorrect, or insufficient redactions. It only happened a 
handful of times since July 2010, that's a much more efficient 
and better process.
    Mr. Meehan. So it would be your testimony that there is no 
longer any delay associated as there had been in the past where 
something would have been prepared for release by you, but it 
would have taken an additional period of time to flow up the 
chain before you got the affirmative approval by the political 
appointee?
    Ms. Callahan. The new SharePoint system has the documents 
unloaded 1 day and they are sent out the next day. So there is 
arguably a 1-day delay, but as Mr. Fong pointed out, that is to 
make sure that we don't disclose law enforcement sensitive or 
other predecisional information inappropriately.
    Mr. Meehan. Mr. Fong, what level of--I'm out of time, but 
what level of training or many engagement do you have with 
those political appointees about their responsibilities and 
their obligations under the Freedom of Information Act who 
participate with you in the review of these documents?
    Mr. Fong. I just want to be clear what your question is 
when you refer to the political appointees.
    Mr. Meehan. Those--those who in the past, in the past must 
have had to affirmatively indicate this complex area and you 
appreciate that. They were doing the affirmative indication. 
What--and now presumably, that's no longer the case I'm happy 
to hear that. I'm concerned with moving forward. Not 
withstanding if they are still participating with you in that, 
to what extent do those individuals, do they have any say, may 
they be able to reach back to you and tell you whoa, wait a 
second, do not release that yet.
    Mr. Fong. Of course that is part of the process, then and 
now, that the attorneys in our office who have experience and 
expertise in this area stand ready to be consulted at any time, 
whether it is the FOIA professionals or the political 
appointees or the program managers who will have a much better 
sense of the impact of a disclosure as is required to be 
assessed under the Attorney General's guidance memo. All of 
that information is relevant to making a legal determination, 
and our lawyers are involved in making those determinations.
    Mr. McHenry. The gentleman's time has expired. Mr. Tierney 
of Massachusetts is recognized for 5 minutes.
    Mr. Tierney. Thank you, Mr. Chairman. I'm a little bit 
surprised you have a hearing here where allegations of 
politicization are being made in one direction, yet I look 
behind the chairman's desk and I see nothing but pure politics 
and nonsense up there. And I would hope in the seriousness, or 
to be taken seriously as a committee the majority would begin 
to act that way and take that material down and approach this 
with the degree of seriousness to which it probably deserves.
    With that said, Ms. Callahan, I want to thank you and Mr. 
Fong for your testimony. I do want to note, Mr. Chaffetz is 
gone, but he was referring to an AP story. And I know that 
eventually the AP story said they were unable to substantiate 
the most serious allegations made in the AP story or subsequent 
public comments. So just put that in context. But I was 
concerned with what I thought at one point in his testimony was 
that events involving the ARRA, Recovery Act. There seemed to 
be some indication that it had to be sent to the White House. 
But I asked the staff to go back and get the interview with the 
associate director of privacy, Vania Lockett, who basically 
told us that at one point she thought she was advised that all 
requests needed to be sent to the White House, but since then, 
she was advised directly from the White House that was not the 
case. Does that comport with your understanding, Ms. Callahan?
    Ms. Callahan. Thank you for that clarification. And that 
does refresh my recollection, that indeed, that is the case, 
thank you.
    Mr. Tierney. Now I note also that the Department of 
Homeland Security in just last year 2010 alone received 130,000 
Freedom of Information Act requests, is that accurate?
    Ms. Callahan. That's correct, sir.
    Mr. Tierney. And about 600 of those were considered 
significant enough to require additional review, is that right?
    Ms. Callahan. That required to be even put on the weekly 
report for notification purposes, sir.
    Mr. Tierney. The inspector general did indicate that he 
thought approximately 85 percent of those responses had already 
surpassed statutorily mandated 20-day processing deadline 
before they were submitted to the Office of the Secretary. And 
he also said about the delays that the ones that were under the 
review process were short, 1 to 4 days delayed. These 
relatively brief delays still caused temporary withholding of 
certain documents that a component was prepared to release. Do 
you agree with that assessment?
    Ms. Callahan. I do agree with that assessment, but that, of 
course, was under the original awareness process that I 
discussed with Representative Meehan, and therefore with have 
modified that process to make it a notification-only system. So 
I believe we have mitigated the inspector general's concerns in 
that way.
    Mr. Tierney. Now, I also note that when this administration 
took office a couple years ago, they already had a backlog in 
the Department of more than 74,000 FOIA requests; is that 
correct.
    Ms. Callahan. That is correct. The highest FOIA backlog we 
had was 98,000 in fiscal year 2006. The highest in the Federal 
Government's history, sir. But we've gotten it down to 11,000 
FOIA request backlog, an amazing effort by serious and 
professional career FOIA professionals throughout the 
Department.
    Mr. Tierney. It strikes me in a time of fiscal austerity 
here that you have to hire some 40 more full-time positions in 
the Freedom of Information Act division to actually deal with 
this enormous number of requests for information.
    Ms. Callahan. Well, sir, I believe that indicates the 
Department's commitment to FOIA to increase the number of hires 
during the administration by over 50 positions.
    Mr. Tierney. I think it deals with serious--we have a lot 
of challenges to make here in Congress and a lot choices to 
make with respect to the budget and there seems to be somewhat 
of a commitment there to take 40 full-time positions and 
allocate it toward freedom of information with all of the other 
competing interests we have on that.
    Now the thing that strikes me is that H.R. 1, the bill put 
forward by the majority this year would actually make across-
the-board cuts to the Office of Secretary, significant cuts, 9 
percent. The President was going to raise it 9 percent. H.R. 1 
was going to take that away and make more cuts. What's that 
going to do to your attempts to get a transparency issue here 
and be more responsive to the FOIA requests?
    Ms. Callahan. Sir, I believe it could significantly hinder 
it. I have been able to double the size of my own FOIA staff 
since I've been there, and the Department has shown commitment 
around FOIA across the board as you notified, as you indicated, 
but I am concerned that these cuts will significantly impact 
our FOIA processing and the FOIA officers throughout the 
Department discussed that with me yesterday.
    Mr. Tierney. Mr. Fong, do you agree with that?
    Mr. Fong. I can't speak directly to the impact it would 
have, but I concur with Ms. Callahan's judgment that any time 
one has to reduce resources, there is likely to be an impact. 
We are trying to make our processes at the department as 
efficient as possible but there is an inevitability about such 
a drastic reduction as you indicated.
    Mr. Tierney. I thank you both for your testimony.
    I yield back.
    Mr. McHenry. I thank the gentleman for yielding back.
    At this point, Mr. Lankford is recognized for 5 minutes.
    Mr. Lankford. Thank you very much, and thank you both for 
being here.
    The SharePoint system, as you've been discussing, it does 
sound like a very efficient system, and that seems like that is 
working well, and you're comfortable with the process on that. 
I understand how this is going to be a lot better than e-
mailing documents back and forth, uploading and be able to pick 
them up, and you'll have a chance to gather and review them 
there. Does that increased efficiency help in the budget area 
as well? Does it help with the number of staff members that are 
required to handle that? You've seen an increase in efficiency 
in the communication. Does it increase efficiency anywhere 
else?
    Ms. Callahan. That's an interesting question. I hadn't 
thought about it before, but I think that because it is a 
centralized system and because the labor is actually disbursed 
because the component FOIA officer will upload the information, 
and then my office will just do the notification to across the 
Department that it probably does make it more efficient for 
labor as well as for awareness.
    Mr. Lankford. Great. You mentioned before there was a 1-
day, basically the day before front office gets it, and they 
can have this uploaded before it actually gets sent out to the 
requester itself. Have you had, at any moment, someone that 
once the notification that has been made, there's been a 
contact back saying, hang on to that one for a minute, we need 
to be able to check it for other areas or for whatever reason. 
Have those slowed?
    Ms. Callahan. Yes, sir. Just to clarify, the SharePoint 
system started in July 2010, as I indicated. At that point, it 
was a 3-day notification system. We have moved subsequently to 
a 1-day notification system. But since July, we have had a 
handful of times, including one that I caught last month that 
involved perhaps international equities that were 
inconsistently redacted.
    So I looked at it. I said oh, wait a second. This needs to 
be reviewed and make it--to check for consistency. So I did a 
``reply all'' to the list and said this needs to be checked. I 
instructed my director to have it reprocessed and it's in the 
process of doing it.
    But it's only been a handful of times by my recollection 
since the SharePoint system has started. But each time they 
have been, indeed, good catches and have caught information 
that otherwise would have been inappropriate to disclose.
    Mr. Lankford. So your testimony is that none of those times 
that it was caught and slowed down wasn't for a political 
reason or was a hey, we need to get our story straight before 
this goes out or that kind of issue?
    Ms. Callahan. Absolutely not.
    Mr. Lankford. The issue you brought up several times about 
catching up, which is great, to be able to catch up on, 
obviously a lot of people want to request a lot of information. 
And it is great to be able to start getting caught up on some 
of the backlog that has been there.
    The document that I had received talking about a report 
from DHS, and just the annual Freedom of Information reports to 
the Attorney General of the United States makes a comment about 
the length of time that it takes in 2009 versus 2010. Are you 
familiar with that report and some of the timing on it?
    Ms. Callahan. I believe I issued that report. I am not 
familiar with that exact quote, but I am familiar with the 
report.
    Mr. Lankford. Well, let me run a couple of things back to 
you. It talks about the median number of days to grant a FOIA 
information request. It talked about 45 days in 2009. It is now 
93 in 2010. And in 2009, the average number of days was 74 
days; in 2010, it was 120 days. So it's processing through 
whether it is the SharePoint system is eventually coming on 
line, do you see a lot of the backlog that is occurring there 
in the early parts of 2010. Now it's catching up and it's 
getting better. But you had mentioned you're getting a lot 
faster on it, but based on this report it looks like it's 
slowing down somewhat.
    Ms. Callahan. If I can clarify a few things.
    First, with regard to the awareness review, it was a very 
small number of requests themselves that were impacted, so they 
should have no impact at all on the processing. The number of 
days that you quoted is not--that does not--that is not 
consistent with my recollection of the report, so perhaps there 
was some numbers that I am not familiar with.
    Mr. Lankford. We'll get a chance to pull this and be able 
to share this with you so you can give a response back. Once 
you take a look at it, if you have an opportunity to get us a 
written response to say here are what the actual numbers are 
and that would be terrific.
    Ms. Callahan. I would be happy to clarify that. If----
    Mr. Lankford. What is the decision on making a what is 
called a significant request. I've heard about that a couple of 
times. What is the criteria that you set saying this one's 
significant?
    Ms. Callahan. The criteria for significant reporting, as I 
said, has essentially stayed the same since 2006 and it is to 
essentially be issues that will be discussed in the media so 
that we know they are going on. As has been discussed several 
times, we receive an extraordinary amount of FOIAs each year, 
but there are only a handful of those that we would want to 
know that oh, this has been filed, incidentally this is going 
on.
    That weekly report is sent to the front office but it's 
also sent to all of the FOIA's officers so that they too can 
see that oh, by the way, this component got the same request as 
another component, so it's for awareness purposes on 
essentially sensitive topics, priorities and litigation.
    Mr. Lankford. If a private citizen made that and then 
handed it over to the media, that may or may not rise up. Some 
of it is the requester itself, or some is it the topic?
    Ms. Callahan. It's the topic. It's the topic that would be 
of interest, but of course, if the media's requested it, then 
we assume that is a topic of media interest so that would--the 
media is a default usually to be included just for notification 
purposes, that this request has been made.
    Mr. Lankford. Great. Thanks very much.
    Mr. McHenry. The gentleman's time has expired. At this 
point, we will recognize Mr. Welch for 5 minutes. You arrived 
at the correct time, my friend.
    Mr. Welch. Thank you.
    You know, this question of transparency is an important 
one, but my understanding is that you get overwhelmed with 
requests, and your position is that you are transparent, you're 
doing your job the best you can; is that right?
    Ms. Callahan. That is correct, sir. I try.
    Mr. Welch. Just to elaborate just I want to give you an 
opportunity to explain why you believe you are meeting that 
standard, which is one we share, in what you have been doing, 
and what your specific response is to some of the assertions 
that have been made about your failure to do that.
    Ms. Callahan. Thank you, sir.
    As we've discussed previously, the Department and the FOIA 
professionals therein have made Herculean efforts to get the 
FOIA backlog down from its high of 98,000 to 74,000 when I 
started to 11,000 FOIA backlog. They are under amazing pressure 
and they do amazing work all the time. In addition to reducing 
the backlog, in addition to providing the service----
    Mr. Welch. I am going to interrupt you for a minute, 
because I actually--here's what would be helpful, I think, for 
us and for you, is to explain all right the backlog was X and 
now it's X minus. The number of requests was X and now it's 2X 
and you've reduced it by whatever. But the more specific you 
can be, the better, because I think all of us really respect 
and appreciate the hard work that you and your fellow workers 
are doing. So the more concrete you can be with us I think the 
more helpful it is for the whole committee to be able to come 
to the right conclusion here.
    Ms. Callahan. Absolutely, sir. As I indicated in fiscal 
year 2009, we had a FOIA backlog of 74,000 FOIA requests. That 
has been reduced to--that has been reduced 84 percent in the 
past 2 years to an 11,383 FOIA backlog requests. In addition, 
we have received 102,000 FOIA requests last year while 
processing--this is fiscal year 2009--while processing 160,000 
FOIA requests. That work is primarily the work of the U.S. 
Citizenship and Immigration Services in addressing and being 
more efficient and more transparent and getting their alien 
files processing out. The U.S. Citizenship and Immigration 
Services accounts for 70 percent of FOIAs that are processed in 
the Department. They alone receive between 8,000 and 10,000 
FOIA requests each month, and have been able, through 
commitment, by the USCIS to be able to reduce that.
    Mr. Welch. Let me ask you this: There are some allegations 
in the majority's report, new era of openness that the front 
office of DHS was interfering with FOIA requests by correcting 
errors with outgoing FOIA responses. Obviously, a somewhat 
troublesome assertion. And I want to give you an opportunity to 
tell the committee exactly what type of specific errors did the 
front office review, help to correct?
    Ms. Callahan. So as I've described previously and as 
detailed in my testimony, the front office reviewed both the 
cover letter as well as the underlying FOIA response. They did 
not make any changes to the FOIA responses, but they did 
identify several times where there were typographical errors 
and other elements that were not consistent with 
professionalism standards that I would like. And they have 
caught those in their overall awareness review of the 
documents.
    Mr. Welch. OK. And then according to the inspector 
general's report on page 12, the IG provided that in response 
to allegations by the AP of a ``political filter being applied 
to FOIA responses at DHS,'' the IG stated we were not able to 
substantiate the most serious allegations made by the AP story 
or subsequent public comments. However, we've determined the 
review process led to inefficiencies and slower processing of 
certain FOIA responses.
    Based on that finding, what were some of the inefficiencies 
that you observed and what steps were taken by DHS management, 
including your front office, general counsel's office, and your 
office to reduce any of these inefficiencies and has the 
response time improved?
    Ms. Callahan. Absolutely, sir. We take these issues quite 
seriously. We had identified these problems ourselves and have 
self-corrected it. The initial original awareness process was 
done via e-mail, and it was a relatively cumbersome process. As 
soon as we had a technology solution where we could provide an 
Internet-based system where everyone could access, we moved 
from the e-mail system to the Internet-based system, and that 
process has been much more efficient, and I believe is actually 
right now a leader in the Federal Government.
    Mr. Welch. Thank you. I yield back.
    Chairman Issa. The gentleman from North Carolina, Mr. 
McHenry.
    Mr. McHenry. Thank you.
    I wanted to point out to my colleague, Mr. Tierney, he 
questioned the posters behind the chair's dais. And he says--
questioned why there are political statements on the back wall. 
If the gentleman actually read the briefing document, he would 
know that political statement is actually the title of the 
hearing.
    I just wanted to point that out so folks who obviously are 
in the audience have looked at the title of the hearing and see 
it on the wall, and that is not a coincidence, although some of 
my colleagues may think it is.
    With that, I would be happy to yield the balance of my time 
to Mr. Gowdy.
    Mr. Gowdy. I thank the gentleman from North Carolina.
    Ms. Callahan, what's the purpose of FOIA?
    Ms. Callahan. The purpose of FOIA is, of course, to inform 
the public of the workings of the Federal Government.
    Mr. Gowdy. What are the elements that you would apply just 
determining whether or not something were discoverable or not?
    Ms. Callahan. Discoverable is not quite the right term.
    Mr. Gowdy. Well, you know what I mean.
    Ms. Callahan. No, that's OK. I used to be a lawyer.
    Mr. Gowdy. Me, too. But whether or not it should be 
produced?
    Ms. Callahan. Well, as Mr. Fong has indicated, this 
administration has applies the presumption of disclosure unlike 
the previous administration.
    Mr. Gowdy. I was not asking for a political comment. I am 
simply asking for the elements that you apply to determine 
whether not, which administration is better than another, the 
legal elements that you apply in determining whether or not you 
should turn something over.
    Ms. Callahan. FOIA applies to all Federal records, and we 
seek to find all responsive records. And we look at those 
Federal records, presume that Federal records should be 
disclosed, but look in case that there are specific exemptions. 
There are nine discreet exemptions that may need to be applied 
to documents or elements of the documents.
    Mr. Gowdy. So it should be turned over unless there is an 
exemption?
    Ms. Callahan. Yes, sir.
    Mr. Gowdy. OK. Then why would the employment of the person 
seeking the record matter?
    Ms. Callahan. It doesn't matter at all.
    Mr. Gowdy. Why would that have been part of the calculus 
that was used?
    Ms. Callahan. Sir, it was not part of the calculus that was 
used. The weekly report that summarizes anything that may be of 
media interest----
    Mr. Gowdy. How do we know it wasn't part of the calculus 
that was used?
    Ms. Callahan. I believe the inspector general's report 
actually indicates that political calculations were not part of 
the process.
    Mr. Gowdy. I am not even getting to political calculations 
yet. I'm just asking about residency and employment. What does 
it matter whether or not someone is a private person or whether 
they're a reporter?
    Ms. Callahan. It does not matter at all in terms of FOIA 
requests.
    Mr. Gowdy. Can you be both?
    Ms. Callahan. Yes.
    Mr. Gowdy. So why would you track that information?
    Ms. Callahan. It is only summarized because it may become 
part of media interest or attention.
    Mr. Gowdy. Why? Why keep whether or not it is a private 
citizen that's requesting the information or reporter?
    Ms. Callahan. So it's actually a requirement to disclose 
who has requested--it is a requirement in the Freedom of 
Information Act to disclose FOIA logs, actually say the name of 
the person who's requesting it unless it's a Privacy Act 
request. That is disclosed.
    Mr. Gowdy. And the employment of the person is disclosed as 
well?
    Ms. Callahan. That is not disclosed usually but sometimes 
the media affiliation may be part of the FOIA log, and we have 
our FOIA logs posted on our Web site.
    Mr. Gowdy. What about the political affiliation of the 
person requesting it? Why is that part of the calculus?
    Ms. Callahan. It is not part of the calculus at all, sir.
    Mr. Gowdy. You don't track whether it's a Republican or 
Democrat that requests the information?
    Ms. Callahan. As I indicated earlier, under the FOIA we've 
only gotten one FOIA request from a Member of Congress during 
my tenure.
    Chairman Issa. Would the gentleman yield?
    Mr. Gowdy. Yes, sir.
    Chairman Issa. You said, though, that when Senator 
Grassley, when his had gone through the whole process, it was 
ripe, it was delivered to the political review system in the 
Office of the Secretary that you took care of his request 
through other fashion.
    Ms. Callahan. No, I am sorry if that's what you had 
interpreted.
    Chairman Issa. No. That's what you said. You said that, in 
fact, you took care of Senator Grassley's request through 
another system, but of course, you didn't know about it until 
you were informed that a Republican Senator had a FOIA request 
that was ready to go out.
    Ms. Callahan. No, sir. It wasn't ready to go out. It was 
the initial incoming. So the weekly report summarizes the 
incoming requests that come in, so they are just summarizing 
what the request is. So Senator Grassley may or may not have 
been on the weekly report, but as I said, we never processed 
his response. So pursuant to FOIA, we addressed through other 
means.
    Chairman Issa. OK so I apologize. I yield back.
    Ms. Callahan. That's OK.
    Chairman Issa. It's clear that you take care of politicians 
differently in the one case but go ahead.
    Mr. Gowdy. So this statement, if a Member of Congress 
sought documents, employees were told to specify Democrat or 
Republican, that is an inaccurate comment?
    Ms. Callahan. According to our weekly report elements, we 
are supposed to indicate which is the Democrat. But as I said--
which is a Republican, which is a Democrat, but it hasn't 
happened.
    Mr. Gowdy. Why? Why?
    Ms. Callahan. I think that's the way you guys are usually 
addressed. I don't know why it was a recommendation by my 
career staff to add that into the standards from 2006 so the 
standards from 2006 were modified slightly based off of career 
FOIA recommendations.
    Mr. Gowdy. Mr. McHenry, Mr. Chairman, therefore, my time 
has expired.
    Chairman Issa. I thank the gentleman. We now recognize the 
distinguished gentleman from Illinois, Mr. Davis.
    Mr. Davis. I pass.
    Chairman Issa. I apologize.
    We will next go to the gentleman, the distinguished but 
junior gentleman from Mr. Virginia, Mr. Connolly.
    Mr. Connolly. Thank you, Mr. Chairman, and since I 
celebrated a birthday yesterday, I particularly appreciate the 
``junior.''
    And thank you both for being here today.
    I am not quite sure of frankly why we're here today because 
correct me if I am wrong, either Mr. Fong or Ms. Callahan, but 
I thought the inspector general's report found that actually 
there was a lot more transparency at DHS in this administration 
than in the previous administration. Is that true?
    Ms. Callahan. I believe that is indeed one of the 
conclusions by the inspector general. One of the things that my 
office established in August 2009 is a policy of proactive 
disclosure to attempt to put up the frequently requested 
documents, to put up elements that may be part--people may want 
to seek, for example, FOIA logs. I know that the chairman 
sought FOIA logs for several departments. We put our FOIA logs 
up for the entire department for 2009, 2010 and now we've just 
updated it to 2011.
    Mr. Connolly. Thank you. And which, by the way, at least 
speaking for this Member, I continue to find the signs behind 
the chairman and ranking member offensive and propagandist. And 
one of these signs is framed, of course, in the most biased 
way. It's not an intellectually honest question. It is why 
doesn't DHS deliver on the President's transparency promises.
    And in fact, what you just said, your testimony, Ms. 
Callahan, and the report of the inspector general suggest the 
answer to that question. He did. Would that the previous 
administration had been so transparent, and would that this 
committee, especially some on the other side of the aisle, had 
been equally as concerned about transparency and backlog and 
politicization at DHS under the Bush administration.
    Now, backlog. What was the backlog? How high did it reach, 
and was it true that the backlog of FOIA requests under the 
previous administration hit 98,000 at one point?
    Ms. Callahan. That is correct.
    Mr. Connolly. And by the time that administration left 
office, it was down to 74,000?
    Ms. Callahan. That is correct.
    Mr. Connolly. What is it now?
    Ms. Callahan. Eleven thousand.
    Mr. Connolly. Eleven thousand. So it's one-ninth of its 
height under the previous administration; is that correct?
    Ms. Callahan. Yes, sir.
    Mr. Connolly. The idea of politicization showing, horrors, 
that somebody's political affiliation from Congress, when did 
that practice begin?
    Ms. Callahan. Sir, it was a recommendation from my career 
FOIA staff to add it. But I don't think it's material because 
as I indicated, we don't usually receive FOIA requests from 
Members of Congress.
    Mr. Connolly. That is correct.
    And in terms of notifying political leadership, if that's 
what you can call it, namely the non-career political 
appointees, the leadership picked by the President often 
confirmed by the Senate, notifying them just of the status of 
FOIAs requests, again, horrors, when did that practice begin?
    Ms. Callahan. In terms of notifying that responses went 
out, that actually has been a longstanding process.
    Mr. Connolly. In other words, it began in the previous 
administration?
    Ms. Callahan. The awareness review and having a systematic 
process actually started in this administration, sir.
    Mr. Connolly. This administration?
    Ms. Callahan. It did start in this administration and I 
believe we have a now state-of-the-art solution to it.
    Mr. Connolly. You know, I was the chairman of Fairfax 
County one of the largest counties in the United States before 
I came here. And Virginia actually has one of the most open 
sunshine laws and vigorous FOIA laws, at least at the local 
level of government in the United States. E-mails, phone logs, 
any correspondence, all memos are subject to FOIA and very 
strict time lines in terms of getting FOIA requests fulfilled 
by the media or others.
    Now I was chairman of the county, and it was absolutely 
routine practice that our legal counsel's office would notify 
the political leadership of pending requests so that we weren't 
caught surprised. I find it shocking that some of my colleagues 
apparently think that's an untoward development. I think 
personally, that's responsible management. Just to make sure 
that they're aware of it.
    Is there any evidence, though, and maybe this is the nature 
of their concern of political interference once made aware in 
responding to FOIA requests?
    Ms. Callahan. No, sir. I have no knowledge of any political 
interference with regard to the awareness review and I believe 
the inspector general made the same conclusion in his report.
    Mr. Connolly. Thank you. Mr. Fong, are you aware of such 
political interference?
    Mr. Fong. I agree that the inspector general's report which 
took a close look at this issue did not find any evidence of 
improper political interference.
    Mr. Connolly. Would it be fair in your assessment, Mr. 
Fong, looking at the backlog progress and looking at the 
policies regarding transparency and the lack of political 
interference, one could conclude that as a matter of fact the 
transparency of DHS in this administration has significantly 
improved over the previous?
    Mr. Fong. I think that's a fair statement.
    Mr. Connolly. Thank you. So we've answered that question 
behind the chairman's head.
    I would yield back.
    Chairman Issa. The chair recognizes the distinguished 
gentleman from South Carolina, Mr. Gowdy.
    Mr. Gowdy. Ms. Callahan, if I can summarize this.
    There is a presumption in favor of disclosure. There are 
exemptions which you may avail yourself to. You do not believe 
there's been any political interference. Would you concede that 
slow walking or taking your time in complying with an otherwise 
legitimate FOIA request could be interference?
    Ms. Callahan. There are many steps to FOIA processing that 
could create delays.
    Mr. Gowdy. Including slow walking something, taking your 
time in reviewing it and deciding when to disclose it.
    Ms. Callahan. I hope that wouldn't have happened, but that 
could be one of the many possibilities of delay for FOIA.
    Mr. Gowdy. And that would constitute, you would concede, 
interference.
    Ms. Callahan. Our FOIA professionals take their 
responsibilities quite seriously.
    Mr. Gowdy. That was not my question. My question is even 
simpler than that. Is slow walking or delaying the disclosure 
of information interference?
    Ms. Callahan. It is delay, yes.
    Mr. Gowdy. What about an overuse of exemptions in the 
redaction process?
    Ms. Callahan. That is also something that would give me 
pause. The inspector general's report raises an issue that I 
had not previously identified, which is that the Department has 
been using the exemption B5 perhaps more--it has been using it 
increasingly throughout the past several years starting in 
2006.
    Mr. Gowdy. Perhaps. You used ``perhaps.''
    Ms. Callahan. It has been increasing since 2006.
    Mr. Gowdy. Where in B5 do you find an exclusion or 
exemption for the phrase, ``this is bananas?''
    Ms. Callahan. Sir, I would be happy to defer to my legal 
colleague, but B5 is for predecisional and deliberative 
material.
    Mr. Gowdy. Can you see any way where a B5 exemption would 
apply to an e-mail that said, This is bananas?
    Ms. Callahan. I think we would have to look at the context, 
sir.
    Chairman Issa. Would the gentleman suspend?
    Mr. Gowdy. Yes, sir.
    Chairman Issa. We provided documents to you, and I would 
ask that the gentlelady be given an opportunity to review the 
document that you're asking and then we will restart. Thank 
you.
    Mr. Gowdy. Yes, sir.
    Ms. Callahan. Do you know where in the package it is? I'm 
sorry.
    Chairman Issa. Slide 3, I'm told.
    Ms. Callahan. I don't have slides here, sir. I am sorry.
    Chairman Issa. Take care of making sure they have them.
    Ms. Callahan. And Congressman, if the question is about the 
FOIA production, this looks like this is the FOIA production to 
the Associated Press. As I indicated to the chairman, my office 
did not process this request. Under typical process, typical 
standards, we were recused from the processing and the Office 
of General Counsel made the determinations in this specific 
FOIA.
    Mr. Gowdy. Well, I can still ask you, right? You're still 
an expert in FOIA. Can you possibly find a B5 exemption for the 
phrase, ``This is bananas?''
    Ms. Callahan. Part of the purpose of B5 is to have a 
vigorous and dialog debate and a reasonable dialog and perhaps 
it was the determination of the Office of the General Counsel 
that was part of the deliberative process rather than a final 
decision. But as I said, I wasn't involved in this redaction.
    Mr. Gowdy. What about, Nope, they entirely change our 
response. Spoke with Jordan, and he is going to confer with 
OGC. Would that be a B5 exemption?
    Ms. Callahan. Sir, that also is part of the FOIA request 
from the Associated Press. I was not part of the process, but I 
do know the underlying facts in this circumstance. The Office 
of the Secretary had initially made some recommendations to 
modify our boilerplate FOIA responses, to make them more 
streamlined, and they did not understand that indeed, several 
of the paragraphs were required by law. And therefore, after 
consulting with the Office of the General Counsel, we decided 
to use the same standards so therefore, that was indeed a 
predecisional document because we did not make the changes that 
were recommended by the Office of the Secretary. So in that 
case, again, I did not make the determination, but my opinion 
the exemption would be appropriate.
    Mr. Gowdy. You do think a B5 exemption would be appropriate 
for the phrase, ``They entirely change our response. Spoke with 
Jordan and he is going to confer with OGC?''
    Ms. Callahan. In this factual circumstance, that's because 
they did not--the response indeed was not changed.
    Mr. Gowdy. Well, for those that may not be familiar, what 
is the process if you are redacting an impermissible way, who 
gets to review that?
    Ms. Callahan. Well----
    Mr. Gowdy. How do we know what we don't know. If you are 
redacting something, who gets to decide if the redaction was 
appropriate or not?
    Ms. Callahan. As in my written testimony, I detailed the 
entire FOIA process, including the possibility of consulting 
with counsel. And then once the requester receives the 
response, they have several alternative appeal options and 
administrative appeal, and also going to court.
    Mr. Gowdy. I can't see edits. Are they useful? Now why 
would that be a B5 exemption.
    Ms. Callahan. I am sorry sir, again, I am concerned about 
the overuse of B5 in this Department. Mr. Fong and I have 
discussed it and we're going to look at a systemic solution to 
the issues that the Inspector General raised with regards to 
B5.
    Mr. Gowdy. ``We know it was coming. They are trying to 
substantially edit our letters.'' Why is that a B5 exemption?
    Ms. Callahan. Sir, again, I do not have knowledge of the 
FOIA processing for this element so I am sorry I won't be able 
to continue to answer these questions.
    Mr. Gowdy. Would you agree with me that's not an 
appropriate use for the B5 exemption?
    Ms. Callahan. Again, sir, this was not my processing.
    Chairman Issa. The gentleman's time has expired.
    Now we go to the distinguished gentleman from Illinois for 
5 minutes.
    Mr. Davis. Thank you very much, Mr. Chairman, and you know, 
since I sit next to the other gentleman from Illinois, I just 
wasn't certain.
    But so since both Ms. Callahan and Mr. Fong have testified 
neither are aware of any political interference in respondent 
to FOIA requests, I am going to yield the balance of my time to 
the ranking member, Mr. Cummings.
    Mr. Cummings. I thank the gentleman for yielding.
    Ms. Callahan, I want you to--one of the--first of all, I 
think you admit, and the IG will agree, that the system, things 
are not perfect. By the way, none of our offices are perfect. 
We've got great people, but they're not perfect.
    And I am concerned about this. You know as the IG was 
concerned, he said his recommendation No. 5, it says to 
recommend the Secretary--that the Secretary issue written 
guidance to the Department on the President's reiteration and 
embarrassment and extract fears and exposure of failure are not 
grounds to examine the information under FOIA. And you just 
said that you and Mr. Fong were working on addressing the issue 
of exemption number 5.
    Tell me what you are planning to do. I mean, what do you 
see? You expressed concerns. You said you're trying to do some 
things. How do you address that? Because one of my colleagues 
on the other side said how do we go forward now and I've got to 
tell you, when you said that you all had reduced by 90 percent, 
the backlog--80 percent, whatever, let me tell you something, 
that's phenomenal.
    Now, but we want to do even better. This President has said 
he wants to do better and I want you to address that issue.
    Ms. Callahan. Sir, I want to do better as well. And one way 
with regard to this identification of B5 using in the 
Department, as I said, I had not identified this as a systemic 
problem until the inspector general brought it to my attention. 
Mr. Fong and I have not had a chance to do a thorough plan, but 
I think it obviously is going to look at the specific elements 
of B5, how it's being applied, and also obviously, training and 
materials and education will help to make sure that when 
exemption B5 is being used, it is being used appropriately. And 
it should not be used for embarrassment purposes and so on. So 
I completely concur with that.
    Mr. Cummings. How long have you been in your position, Ms. 
Callahan?
    Ms. Callahan. Two years, sir.
    Mr. Cummings. Were you in the Department before that?
    Ms. Callahan. No, sir. I was in the private sector.
    Mr. Cummings. Well, let me ask you this: You referred back 
to 2006. You referred back to 2006 two or three times. And I 
was just looking at some guidelines, FOIA sections of DHS 
cabinet report to the White House, dated August 4, 2006, and it 
talks about, it says select FOIA requests for submission in one 
of the following criteria. Under that it says one is the FOIA 
request is for congressional correspondence, the FOIA request 
is from a Member of Congress, the FOIA request is from a member 
of the media. Has that--so that's been a policy since 2006?
    Ms. Callahan. Without change, yes, sir.
    Mr. Cummings. And when you came in and you're trying to do 
this more transparency have an effort to make things more 
transparent, I take it you go back and review these kinds of 
things so you know what the guidelines are?
    Ms. Callahan. I did, sir. And I relied heavily on my career 
FOIA professionals with this regard. We looked at the 2006 
guidance. Decided to issue it as a memorandum from me to show 
its importance, but also added some ministerial and formatting 
elements to it to be quite frankly more professional and 
consistent with how we refer to things. But the substance of 
the submission guidelines have not changed since 2006.
    Mr. Cummings. So in other words, there was nothing between 
2006 and when you came in?
    Ms. Callahan. Yes, sir. That is correct.
    Mr. Cummings. So that's what you had to go back to?
    Ms. Callahan. Yes, sir.
    Mr. Cummings. So is it safe to say that during the latter, 
I guess, the Bush years, President Bush's years, 2006 through 
2008, that these were the guidelines; is that right?
    Ms. Callahan. That is correct, sir. And they remain 
essentially the guidelines today.
    Mr. Cummings. I see.
    Now, Mr. Fong, the attorney, the IG made some complaints 
about your department such as Department's commitment to 
producing documents is in question. DHS assertions about 
resources dedicated to complying with document productions are 
suspect. Made a number of allegations. And since you are not 
going to be here to answer those, but you are familiar with 
them, I think it would benefit the entire committee for us to 
know what your responses are to those because they were rather 
serious.
    Mr. Fong. To clarify, you may have inadvertently referred 
to the inspector general.
    Mr. Cummings. I meant the inspector general.
    Mr. Fong. You meant the----
    Chairman Issa. I ask the gentleman have an additional 1 
minute.
    Mr. Cummings. Talking about the Republican staff report. 
I'm sorry.
    Mr. Fong. Yes, thank you for giving me an opportunity to 
respond.
    I have not had an opportunity to read the entire report in 
depth, but I did carefully review the allegations made 
concerning attorneys in my office, including career attorneys 
who have worked there with great success for some time. I 
confess that when I first saw the section heading, my initial 
reaction was one of concern because as you indicate, they make 
very serious allegations about lawyers I know well. And I take 
very seriously, as I should, any allegation of wrongdoing by my 
staff.
    Upon further examination of the portion of the report 
dealing with the OGC lawyers, however, my concern, frankly 
turned into indignation because I believe the report paints an 
unfair, and if I may say, an irresponsible portrait of certain 
people and events. The report reads more like an advocacy piece 
rather than a sober substantive, dispassionate, investigative 
report. In that sense, the portion of the report that focuses 
on the Office of the General Counsel is quite unlike the 
inspector general's report, which resulted from a serious fact-
finding effort and makes six constructive recommendations, all 
of which the Department has concurred with.
    Chairman Issa. Thank you. We've gone 2 minutes past. I 
think he's fully answered his opinion. We now go to the 
gentleman from Michigan, Mr. Walberg, for 5 minutes.
    Mr. Walberg. Thank you, Mr. Chairman.
    Ms. Callahan, in your written testimony, and I hope I am 
not going back over a question that I missed while I was out in 
another committee for a brief period of time, but in your 
written testimony, you state that 2 years ago, the Department 
faced a backlog of more than 74,000 FOIA requests. Under this 
administration, you go on to state, we reduced the backlog by 
84 percent or more than 63,000 requests.
    In his interview with the committee, William Huzerland, a 
member of your staff, pointed out that about 30,000 records 
were transferred to the Department of State. According to Mr. 
Huzerland, ``Literally boxes on pallets were dumped on the 
State Department when we had done our portion of the 
processing.''
    Do you feel that it's fair to take credit for backlog 
reductions that have simply been transferred to another agency 
and the records remain in the Federal Government?
    Ms. Callahan. If I can clarify exactly what that process 
is. I am familiar with incident.
    As I had testified earlier, the U.S. Citizenship and 
Immigration Services has done an amazing job of processing 
their files. They receive between 8,000 and 10,000 FOIA 
requests a month for primarily immigration files and alien 
files. Under FOIA, each department processes their own records, 
so once USCIS had finished processing the DHS documents, or the 
USCIS documents, they then go through a process that is typical 
in the Federal Government of referral.
    So because the USCIS was so successful in getting their 
backlog down in fiscal year 2009, and for that I commend them, 
unfortunately the Department of State was the beneficiary of 
that, because in some of those records, there were not only DHS 
documents, but also Department of State documents. We are 
attempting to--that is, I think a one-time circumstance because 
of CIS's success in getting the backlog down.
    One way we could mitigate this is for CIS to sign a 
memorandum of understanding with the Department of State to 
process the Department of State documents, and I believe that's 
in discussion.
    Mr. Walberg. But again, this backlog wasn't reduced by your 
Department, by your office?
    Ms. Callahan. No. It's been reduced throughout the 
Department by all the FOIA professionals, the 420 FOIA 
professionals that work hard every day.
    Mr. Walberg. That may be the case. But the credit seems to 
be at a different spot in addition. According to a recent AP 
report, a significant portion of the reductions achieved across 
DHS was a result of a Federal contract signed under the 
previous administration, the Bush administration, in light of 
the fact that a private company completed this work under 
contract signed during the previous administration, is it not, 
somewhat disingenuous for you to credit these reductions to 
this administration?
    Ms. Callahan. The reductions are the reductions, and as I 
indicated, USCIS has made an incredible effort, and they have 
done so in coordination with contracts, and that is certainly 
the case. And I applaud them for applying such a significant 
priority to getting that backlog down. They have done an 
amazing effort.
    Mr. Walberg. Credit where credit is due.
    Ms. Callahan. Yes, sir.
    Mr. Walberg. And politics where politics is due.
    Let me ask another question here.
    During their interviews, your FOIA officer stated that the 
front office approval was needed before they could release FOIA 
responses. Your deputy chief FOIA officer testified, and I 
quote, they, front office were, well, reviewing and then 
approving, yeah, absolutely because if we couldn't send 
something out the door until they gave the thumbs up, that's 
approval. Do you disagree that approval policy was, in fact, in 
place?
    Ms. Callahan. The original part of the awareness process 
was indeed an affirmative acknowledgment of that they have 
received the FOIA and that they had reviewed the FOIA. That had 
management challenges. I have admitted that, and I believe that 
we attempted to mitigate that immediately. We have now moved to 
a system which is a notification system, and I believe it is 
much more efficient.
    Chairman Issa. Would the gentleman yield?
    Mr. Walberg. I yield.
    Chairman Issa. So just to review.
    You took credit for a big reduction that $7.6 million worth 
of Bush-era money paid for a contract and reduced it. You took 
credit for 30,000 records that were transferred to another 
workload of other people. Now, you have some really hardworking 
people, and I appreciate that. But how do those people feel 
about the day after our whistleblower and others giving 
testimony, the whistleblower gets taken out of her office, 
moved to an inferior office, inferior title, and has her job 
narrowed in scope, and then, quite frankly, I am told she's now 
on a basically health leave.
    I am listening to all of this and I'm saying, isn't that 
the most chilling effect anyone could ever have to see that if 
you tell the truth to Congress, the next day your job is 
reduced and your office is changed, and it's not called a 
demotion but it sure as hell looks like one?
    Ms. Callahan. Sir, there are several elements of the 
process that I cannot speak to here. But I am happy to have a 
nonpublic briefing about certain personnel issues.
    Chairman Issa. My time is expired. We don't do nonpublic 
issues when a whistleblower is penalized, and hundreds of 
hardworking people see the effect of testifying honestly under 
oath before Congress. My time has expired.
    I yield back.
    Does the ranking member request a second round.
    OK. We'll have a second round. And I'll begin.
    Mr. Fong, basically Ms. Callahan has said she was recused 
in the process. But you were not recused. Your department was 
not recused. You're a political appointee. Many of the people 
in your department are political appointees. And the general 
counsel's office regularly does redacting, including 5B, isn't 
that true?
    Mr. Fong. I am not familiar with the specifics of the 
process.
    Chairman Issa. I will make it simpler. You're a political 
appointee, right?
    Mr. Fong. Correct.
    Chairman Issa. Other people in your department are 
political appointees?
    Mr. Fong. A few.
    Chairman Issa. Your department does redacting. That's 
already been testified to.
    Mr. Fong. The Department does.
    Chairman Issa. The general counsel's office.
    Mr. Fong. We may adjudicate or interpret the statute.
    Chairman Issa. You add things which get black lines over 
them; isn't that true?
    Mr. Fong. We provide legal advice to determinations made by 
the Office of Privacy.
    Chairman Issa. OK. So in the case of the AP's fairly 
sensitive request, constitutional, first amendment in addition 
to FOIA, they, in fact, found you doing the redaction of the 
material delivery. Your office headed by a political appointee, 
did the actual redactions that are being talked about here 
today. Isn't that true. Your office. People under your control? 
Yes or no is all we need to know.
    Mr. Fong. No.
    Chairman Issa. OK. Who did the redactions that we're 
talking about here today that Ms. Callahan is saying she was 
recused from, but we're seeing some pretty absurd redactions 
here. Who did them?
    Mr. Fong. I do not know who made the specific redactions. I 
do know that a senior career lawyer was involved in giving 
legal advice to those who made the redactions. I can't speak to 
the specifics.
    Chairman Issa. I am going to ask kind of a closing question 
on this subject.
    The President said, and was unambiguous on his first day in 
office that he wanted to err on the side of disclosure. If you 
had a recused department on a particular request, the AP 
request, why wouldn't it have been appropriate to meet the 
spirit of the President's own words to simply say to the FOIA 
career professionals, we're not going to second guess this one. 
We'll err on the side of openness. You do what you think is 
right. You deliver it, and we won't have it further reviewed by 
those in your office and others that might have suggested 
further redactions, some of which look like covering up 
embarrassments, or if you will, deliberative cover-up 
conversation.
    The meaning of these items which we are releasing today, 
it's a very small part of the discovery, have never been given 
to the Associated Press. They've been denied the Associated 
Press for 9 months. Why is it it wouldn't have been appropriate 
in either one of your answers, yes, or no, to have erred on the 
side as the President said, and had the career professionals do 
it and take your chances that maybe just once something would 
get out that wouldn't be perfect, even though it was done by 
the career professionals.
    Mr. Fong. Mr. Chairman, it would not have been appropriate 
because the President's memorandum did not say to ignore the 
law. The law includes exemptions. We are duty bound.
    Chairman Issa. OK. I've heard enough of a political 
appointee who interfered clearly with career professionals. We 
have a whistleblower who your organization has punished that 
was part of an overall disclosure that we have become aware of. 
Let me just close because my time too is limited.
    We're not done with this. The minority may think that this 
is not right. Our expectation is from this day forward, we want 
the rest of the documents that were requested. We want to see 
them all.
    Additionally, I am putting you on notice that as we view 
the AP request which is 9 months delayed, they have not had 
their day in court to get some of the things that we're seeing 
here today. We're going to have additional hearings so that we 
fully understand, line item by line item, each redaction that 
they're waiting to see 9 months later and haven't seen.
    So I would ask, quite frankly, that you do what you need to 
do to ensure that we don't have another hearing. Make an 
expeditious decision on this appeal. You know, 9 months with 
the Associated Press to want to know about something that in 
your own words have led to changes, material changes in how you 
do business in the FOIA section. And 9 months later, the AP is 
still waiting on responses to these. And the only answer we got 
here today is well, I didn't review them, I was recused. I 
didn't actually work on it, but we can't actually explain why 
``it's bananas'' in fact gets redacted.
    That's something the American people, they expect every day 
that the press asks and the press gets answered. And if FOIA 
statute is unambiguous that, in fact, it's only through narrow 
exemptions. And if those exemptions have been abused once and 
it's deliberate, then they have been abused.
    With that, I yield to the ranking member.
    Mr. Cummings. Thank you very much.
    Mr. Fong, as a lawyer, and I used to represent lawyers when 
they got in trouble. And I know that license to practice law is 
very, very important. And we are held to a very high standard 
as officers of the court, and I could--when I asked you about 
the allegations in the report, I could tell that you got a 
little bit emotional, and probably you share what I share. I 
know the feeling.
    I want to give you a chance to respond to some of these 
allegations, because there's something that while the chairman, 
and rightfully so, is concerned about people demoted, I'm 
concerned about that, too, but I am also concerned about 
people's reputations. And lawyers, you know, we have a high 
standard to set. You started talking about the lawyers in your 
office. There have been allegations that have been made that 
could possibly lead down the road to some serious problems for 
those lawyers.
    So I want you to respond. And by the way, most of the 
lawyers I would guess could be making a lot more money if they 
were in private practice or doing something other than 
government work. But they're dedicated employees and I refuse 
to allow them to just be under a blanket of negative 
allegations to be placed upon them without at least or giving 
you a chance to respond.
    Mr. Fong. Thank you very much, Congressman, for giving me 
this opportunity to supplement my answer to your earlier 
question.
    It is, as you indicate, truly unfortunate that the 
attorneys who are the subject of the majority report are, in 
fact, career attorneys, a line attorney in one instance and a 
senior attorney for the Department to have their names dragged 
into a public report simply for performing their duties as 
attorneys for the U.S. Department of Homeland Security.
    I've reviewed their performance in representing the agency 
in this investigation, and continue to do so. I have not found 
any indication of unethical activity or improper practice of 
law. The DHS attorneys I know are hardworking dedicated 
professionals. The report has some salacious headlines, but 
this report simply does not describe the attorneys I know and 
work with.
    I also want to underscore that I believe we have fully 
cooperated and acted in good faith with respect to this 
investigation.
    I thank you for this opportunity to respond.
    Mr. Cummings. Ms. Callahan, I would like to give you the 
opportunity to finish what you were saying, again, again, 
chairman talks about fairness, talks about people's 
reputations, talks about the motions. But there have been some 
serious allegations made here. And I don't know what the truth 
is to be honest with you. But I'd like for you to at least be 
able to answer the question.
    Ms. Callahan. Yes, thank you very much, sir.
    Catherine Papoi remains in the same position that she's 
held in this office, director disclosure in FOIA, and in fact, 
she competed for a promotion, a new SES position that I was 
given by the Department demonstrating the importance of FOIA by 
this Department. The competition was open. It was a laborious 
and detailed process involving several different career SES 
panels. Ms. Papoi was not selected, and that was confirmed by 
the Office of Personnel Management.
    Mr. Cummings. When was that decision was made?
    Ms. Callahan. The initial selection of the proposed new SES 
was December 14-17, 2010.
    Ms. Papoi was informed that she was to--had not received 
the promotion on January 10, 2011, and then we were working on 
on-boarding the new SES. That process takes a while. It goes 
through security. The new SES cleared security on February 
24th, but was not released from her department until officially 
March 2nd.
    On March 2nd, we received notification that her department 
had released her. That's required in order to have her move on. 
And we were informed by the Office of the Chief Human Capitol 
Officer that, indeed, her first start date would be March 14th. 
We then took the first opportunity we attempted to notify Ms. 
Papoi on March 4th, which would have been the day after her 
testimony, but it was in order to give her notice that this was 
happening. She certainly was aware that the new SES was coming 
on board. She did not know the date certain. So we were 
attempting to tell her with as much time as possible so that 
she could move offices.
    The office moves are comparable offices. I had made the 
decision to have the new SES closer to me because now the new 
SES is one of the two people who report to me directly.
    Mr. Cummings. Thank you.
    Chairman Issa. I thank the gentleman.
    We will take a 5-minute recess to set up for the second 
panel.
    I am sorry. Mr. Walberg, did you want a second round? I 
apologize.
    We will recognize the gentleman.
    Mr. Walberg. I did, and I appreciate the opportunity.
    Chairman Issa. And you do.
    Mr. Walberg. And I get it, right?
    Moving from Ms. Papoi, I want to go to exhibit 7, if we 
could have that shown. In this e-mail to Amy Shlossman, the 
deputy chief of staff, you explain why the FOIA office must 
repeat the requester's language verbatim to minimize legal 
liability. Amy Shlossman responds by saying or writing legally 
we have to repeat allegations in FOIAs. Can we get a read on 
that prior to tomorrow, the meeting tomorrow? What does 
Shlossman mean ``can we get a read?''
    Ms. Callahan. I am not sure. I believe she's addressing two 
people. I was not copied on this portion of the e-mail.
    Mr. Walberg. But you responded to it.
    Ms. Callahan. No, sir. I believe I was the original e-mail 
and then she forwarded it on to two colleagues asking for their 
response.
    Mr. Walberg. What do you think she might mean by can we get 
a read?
    Ms. Callahan. I believe she was asking whether or not my 
summarization was full and complete.
    Mr. Walberg. You're the chief privacy officer and a lawyer.
    Ms. Callahan. I am not a lawyer in this position. I just 
need to clarify that.
    Mr. Walberg. Well, I am a minister and I am always a 
minister. You are a lawyer and are always a lawyer. We can't 
get away from it.
    Ms. Callahan. That may be true. That may be true, sir.
    Mr. Walberg. Why did she have to go to the Office of 
General Counsel?
    Ms. Callahan. As with any office there certainly are 
reasonable disagreements on different positions, and she was 
just confirming, indeed, that what I had said she was probably 
making sure that was indeed accurate and I believe she received 
that confirmation.
    Mr. Walberg. Do you believe that the front office staff had 
an appropriate understanding or appreciation of FOIA statute 
and processes?
    Ms. Callahan. I believe they have a much more robust 
understanding of FOIA than when they first arrived.
    Mr. Walberg. So that's changing.
    Ms. Callahan. I hope so.
    Mr. Walberg. I yield my time.
    Chairman Issa. Would the gentleman yield?
    Mr. Walberg. Yes, I would.
    Chairman Issa. Because I believe the next panel is going to 
be very different. I would like the summarize a couple of 
things about this hearing that I think have come to light.
    One is this hearing has never been about the reduction in 
the backlog of FOIA. Whether that was produced by contractors 
paid over $7 million by new equipment, or by transferring to 
other departments. This has been about somewhere north of a 
thousand requests that were politically sensitive that involved 
the press in most cases, many cases, in one case a Member of 
Congress. Those are the only ones we've ever really talked 
about. If they don't get special handling as we're well aware, 
the Office of General Counsel often has no impact on thousands 
and thousands of requests. The career professionals receive 
them, make decisions and send them out.
    Those are the ones that this committee in our oversight 
role are pleased with. We're pleased with the vast majority. 
We're pleased with the thousands of FOIA professionals 
throughout the Federal Government. So I just want to make clear 
in closing this is not about the reduction or the increase, and 
as a matter of fact, it is not about the very, very great and 
positive words that President Obama said on day one when he 
wanted to make a statement that there would be more openness, 
and that effectively, in my words, you err on the side of 
disclosure that, in fact, we don't want to err on the side of 
secrecy, particularly at Homeland Security. This would be 
important.
    So as we go into the second panel, we meet with the IG and 
others, hopefully we will all understand that we want to limit 
this to only the portion that is by definition controversial. 
The forwarding and SharePoint is a great piece of software. I 
am very familiar with it. Is a good investment. But forwarding 
it so that somebody can make a decision which we can only know 
in their own minds their deliberative process has to be 
scrutinized by this committee because we are the committee of 
all of the questions of abuse and we're the overseer of the 
Hatch Act and other laws designed to keep politics out of the 
policy of the executive branch.
    I thank the gentleman for yielding.
    We will now take a 5-minute recess to reset.
    [Recess.]
    Chairman Issa. Thank you all for your patience as we reset. 
We now recognize the second panel of witnesses. Mr. Charles 
Edwards is acting inspector general of the Department of 
Homeland Security, welcome. And Mr. John Verdi is senior 
counsel and director of open government project at EPIC.
    Pursuant to as you saw in the first round to the committee 
rules, would you please rise, raise your right hands to take 
the oath.
    [Witnesses sworn.]
    Chairman Issa. Let the record reflect that all witnesses 
answered in the affirmative, please be seated.
    Since you were patient through the first round I won't re-
recite anything. With that we recognize Mr. Edwards for his 
opening statement.

 STATEMENTS OF CHARLES EDWARDS, ACTING INSPECTOR GENERAL, U.S. 
    DEPARTMENT OF HOMELAND SECURITY; AND JOHN VERDI, SENIOR 
   COUNSEL, DIRECTOR OF OPEN GOVERNMENT PROJECT, ELECTRONIC 
                   PRIVACY INFORMATION CENTER

                STATEMENT OF CHARLES K. EDWARDS

    Mr. Edwards. Good morning, Chairman Issa and Ranking Member 
Cummings, and members of the committee. I am Charles K. 
Edwards, acting inspector general for Department of Homeland 
Security, DHS. Thank you for the opportunity to discuss DHS's 
efforts to disclose information under the Freedom of 
Information Act [FOIA]. My testimony today focuses on our 
review of the DHS's FOIA program, as well as the March 2011 
report the, DHS privacy office implementation of the Freedom of 
Information Act.
    During the review, we found that the Office of the 
Secretary's involvement in the FOIA process creates delays and 
causes the Department to violate the 20 business day statutory 
response requirement. DHS has a substantial FOIA caseload. In 
fiscal year 2009, it received 103,093 FOIA requests, or 18 
percent of the Federal Government's 557,825 requests.
    In fiscal year 2010, the number of requests increased by 26 
percent to 130,098. Under the guidance of the chief FOIA 
officer, the DHS Privacy Office staff processed requests for 
the privacy office and eight headquarters offices, while most 
of the Department's major components processed requests under 
the guidance of their own FOIA officers.
    The privacy office also promotes proactive disclosure which 
increases the Department's level of transparency while 
potentially decreasing the number of FOIA requests that the 
agency receives. However, despite our positive findings, there 
were certain aspects of DHS FOIA process that caused concern. 
Specifically, they determined that the Office of the 
Secretary's involvement in the FOIA process created 
inefficiencies that hampered full implementation of the FOIA 
process.
    Although components have been required to notify the Office 
of the Secretary of certain FOIA cases since 2005, this policy 
did not require that the Office of the Secretary review the 
action FOIA releases. Instead, the process provided information 
about what was being disclosed. However, in September 2009, 
with respect to these FOIA cases, components were required to 
provide all the material intended for release to the Office of 
the Secretary for review and concurrence. And to such time, the 
components were prohibited from releasing the FOIA responses. 
This additional level of review and concurrence delayed the 
release of materials, and in some cases, caused the Department 
to violate the statutory time line. Department officials have 
stated that advanced knowledge of significant releases can 
improve the DHS's response to media inquiries. That's often 
followed the public release of information about DHS 
activities.
    Although we understand the Department's reasoning, we do 
not consider that delaying a FOIA release is the best public 
policy, particularly when such delays lead to the violation of 
the statutory deadline.
    We make several recommendations in our report that promote 
the privacy officers proposals and initiative. We recommend 
that DHS first develop additional policies on proactive 
disclosure; second, formalize the roles and responsibilities of 
the public liaison; and third, implement the internal review 
function to maximize efficiencies and improve the 
administration of FOIA operations.
    In addition, we recommend that the chief FOIA officer 
regularly make recommendations to the Secretary for adjustments 
to agency practices, policies, personnel and funding as 
necessary to improve implementation of the DHS FOIA program, 
reduce the Department's exposure to legal risks, and implement 
the President's vision as articulated in the 2009 guidance.
    In conclusion, the Department has made some important 
progress in administration of the FOIA. We recognize the 
challenges involved in processing a large number of FOIA 
requests each year, especially in a timely manner. By 
implementing our recommendations, we trust the Privacy Office 
can improve the overall efficiency in the DHS FOIA disclosure 
program. We look forward to additional collaboration during the 
corrective action process.
    Mr. Chairman, this concludes my remarks and I would be 
happy to answer any questions that you or the committee members 
may I have.
    Chairman Issa. Thank you, Mr. Edwards.
    [The prepared statement of Mr. Edwards follows:]



    
    Chairman Issa. Mr. Verdi.

                    STATEMENT OF JOHN VERDI

    Mr. Verdi. Good morning, Mr. Chairman, Ranking Member 
Cummings, and members of the committee, thank you for the 
opportunity to testify today. My name is John Verdi, and I'm 
senior counsel at the Electronic Privacy Information Center, 
commonly called EPIC. I'm director of EPIC's open government 
project. We have a longstanding interest in open government, 
particularly in the power of transparency to ensure 
accountability for executive agencies.
    Since EPIC's establishment in 1994, we have filed Freedom 
of Information Act requests with Federal agencies, including 
the Department of Homeland Security, concerning domestic 
surveillance programs and emerging electronic privacy topics. 
FOIA has helped to guarantee the public's right to know for 
generations of Americans.
    President Obama made open government and transparency a 
hallmark of his administration on his first day in office, 
stating that, ``The Freedom of Information Act should be 
administered with a clear presumption. In the face of doubt 
openness prevails.'' But political review of FOIA request is 
antithetical to the fundamental values that undergird the act.
    In EPIC's history of successful FOIA practice, we have 
never encountered policies like the DHS program at issue at 
today's hearing. EPIC often clashes with agencies of the 
application of exemptions. We battle agencies' failure to 
comply with statutory deadlines. We frequently litigate, 
challenging agencies' alleged legal basis for withholding 
specific records. But we have never observed practices that 
flag FOIA requests for political review. We are not aware of 
any other program that has singled out FOIA requests based on 
politically sensitive content or the identity of the requester. 
In our experience this program is unique, and it is uniquely 
harmful.
    Political review delays the release of records and raises 
the specter of wrongful withholdings. EPIC's experience with 
DHS from 2009 through this morning has been almost exclusively 
characterized by improper delays. Since 2009, the Department of 
Homeland Security has failed to comply with FOIA deadlines in 
100 percent of requests filed by EPIC. It has failed to comply 
with multiple deadlines regarding some single requests. These 
delays pose real frustrations for even the savviest FOIA 
requesters. For the majority of FOIA requesters, delays can 
prevent the disclosure of records in a useful timeframe, or 
they can preclude the disclosure at all. Federal law simply 
does not permit agencies to select FOIA requests for political 
scrutiny of either the request or of the requester.
    The political review process raises the specter of 
political influence over disclosure, it is unlawful. Unless 
records fall within one of nine narrow statutory exemptions, 
anyone who seeks documents under FOIA is entitled to receive 
them. No provision of the act allows an agency to deny a FOIA 
request or delay its response for political reasons. In fact, 
the law requires expedited processing of records concerning 
ongoing Federal activities, just the sort of disclosures that 
were delayed by DHS's political review.
    Although DHS alleges that political vetting no longer 
occurs, there has been no formal publication confirming an end 
to the policy. And the inspector general's report describes 
ongoing political review. We are troubled that political 
vetting apparently continues at DHS. And we are deeply 
concerned that such unlawful review might be practiced by other 
executive agencies.
    Finally, I wish to highlight another DHS policy, unilateral 
administrative closures that contravenes the FOIA, thereby 
reducing transparency and hindering accountability. Based on 
EPIC's experience, EPIC has four recommendations. First, DHS 
should immediately cease political review of FOIA requests; 
second, DHS should immediately disclose all agency records 
responsive to FOIA requests including the request by the AP 
that were subject to political review; third, all other 
executive agencies should immediately cease political review of 
FOIA requests and report to this committee the extent to which 
they engaged in such review; and fourth, all agencies should 
certify as part of their annual FOIA reporting requirements 
that no FOIA requests were reviewed by political appointees.
    I thank you for your interest and will be pleased to answer 
your questions.
    [The prepared statement of Mr. Verdi follows:]



    
    Chairman Issa. Thank you. And I think you both set a 
record, each of you stayed under the 5 minutes.
    At this time, I'm going to recognize the gentleman from 
Michigan for his 5-minute questions. Mr. Walberg.
    Mr. Walberg. Thank you, Mr. Chairman. I am surprised to be 
sitting this far down on the dais and have the opportunity to 
question first, that's great.
    Chairman Issa. Sir, you're No. 1 with me.
    Mr. Walberg. Thank you, thank you. That's why I like this 
committee. I serve on Homeland Security as well, so this, of 
course, is very, very interesting to me. Because not only are 
we responsible for making sure that our homeland is secure, but 
that those who are making our homeland secure are secure in the 
fact that we want to know, and ought to have that information. 
Thank you to the witnesses for being here today.
    Mr. Verdi, you made several statements about the political 
appointee review process. You used some words like 
antithetical, harmful, but the word that really caught my 
attention was ``unlawful.'' That you believe it is unlawful for 
political appointees to be involved in the FOIA review process, 
why?
    Mr. Verdi. I believe it to be unlawful for political 
appointees to be involved in the political review process at 
DHS for this reason: The criteria under which those appointees 
were reviewing requests includes criteria including the 
identity of the requester on the subject matter of the request. 
And the Supreme Court, in two cases, one is National Archives 
versus Favish, and one is DOJ versus Reporters Committee in 
1989 has held that neither the identity of the requester nor 
the content of the request is relevant to the agency's 
obligations under FOIA.
    So these political criteria, the identity of the requester, 
whether or not the request relates to a Presidential agency or 
priority, the content of the request. The Supreme Court has 
spoken and has said that unless the request implicates 
documents concerning one of nine narrow exemptions, that those 
records must be disclosed. And that's why I believe this 
political review process to be unlawful. It considers factors 
that the U.S. Supreme Court has stated are simply irrelevant.
    Mr. Walberg. Mr. Edwards, would you concur and why?
    Mr. Edwards. Can you repeat the question?
    Mr. Walberg. On the political review process being 
unlawful, I mean, we heard the words ``antithetical,'' 
``harmful.'' It is all negative, but unlawful steps up to a 
higher plane.
    Mr. Edwards. Well, unnecessarily bureaucratic hurdles have 
no place in the new era of open government the President has 
proclaimed. So we think that the significant review process 
just delays, and there should be no delay. The Secretary has 
overall authority over her personnel. So we don't think it is 
unlawful, yet we don't like any delays. Because when the career 
FOIA personnel has finished reviewing it, it should be going 
out the door.
    Mr. Walberg. Thank you.
    Mr. Verdi, would you consider the DHS awareness process a 
review?
    Mr. Verdi. My understanding of the, quote, unquote, 
awareness process as it was described today is that it 
continues to flag FOIA requests for special consideration based 
on political factors, factors that have nothing to do with the 
FOIA statute or the application of exemptions. So as far as I 
can tell that to review the committee's report and the 
inspector general's report and I believe Ms. Callahan's 
testimony earlier today indicates that if political staff 
identifies issues that they want to see resolved before a FOIA 
requests goes out that they can halt the disclosure during that 
1-day review period. So that strikes me as certainly 
constituting a review and not simply an awareness process.
    Mr. Walberg. OK. The July 2009, directive from Mary Ellen 
Callahan--and I pose this to Mr. Verdi--that directive 
referenced in EPIC's letter to OGIS specifies that the FOIA 
office must provide to the front office the requester's name, 
city, State, affiliation and description of organization, if 
not widely known. Is it lawful for DHS to require this 
information about FOIA requesters?
    Mr. Verdi. I do not believe it to be lawful. I believe 
under binding Supreme Court precedent that the requester's 
name, city, State, affiliation, a brief description of any 
lesser-known organization's mission is irrelevant to the 
disclosure. Now, whether this information is incidentally 
collected throughout the process, obviously, a FOIA requester 
must identify him or herself to the agency, right? And 
typically they identify their city and State so that they may 
receive records, but the use of this criteria for the 
processing, redaction, or withholding of records I think is 
plainly unlawful.
    Mr. Walberg. Thank you.
    Chairman Issa. I thank the gentleman.
    The ranking member is recognized for 5 minutes.
    Mr. Cummings. Mr. Edwards, just tell me something. Can you 
tell us whether the--over the wires now they've got something 
the chairman said earlier today. He said, this whole thing 
reeks of a Nixonian enemies list. And I was just wondering, in 
your review, in fairness to everybody, did you find that to be 
the case? Did you find any evidence of that kind of atmosphere?
    Mr. Edwards. No, and I would like to explain, if I could.
    Mr. Cummings. Yes, please.
    Mr. Edwards. Our scope of our investigation or inspection 
was to look at the process. We looked at the process from the 
beginning to the end, and we found we had some heartburn over 
the significant review process. The job that you have me to do 
is to look to see if DHS's programs and operations add value, 
and that's all I did.
    Mr. Cummings. Well, let me ask you this. Did you find that 
questions concerning the identity of the requester were asked 
in order to impact the amount of information that would be 
disclosed?
    Mr. Edwards. I only looked at the processor, and I cannot 
comment on that.
    Mr. Cummings. Well, I want to be fair to everyone. Again, 
on page 11 of your report, you said this: After reviewing the 
information and interviewing DHS FOIA experts, we determined 
that the significant request review process did not prohibit 
the eventual release of information.
    Is that accurate?
    Mr. Edwards. That's correct, sir. But if you look at the 
Attorney General's March 2009, memo: Unnecessary bureaucratic 
hurdles have no place in the new era of open government that 
the President has proclaimed.
    And, also, if you look at the January 2009, President's 
memo: In responding to requests under FOIA, executive branch 
agencies should act promptly in a spirit of cooperation, 
recognizing that such agencies are servants of the public. So 
we should not have any delays----
    Mr. Cummings. Right.
    Mr. Edwards. But, however, when we looked at it, we did not 
find anything that was changed or abstracted from sending 
things out.
    Mr. Cummings. Did you find that anybody was disadvantaged, 
to your knowledge?
    Mr. Edwards. Well, you are exposing the Department to go 
beyond this 20-day statutory timeline, and also we are exposing 
the Department to legal risk. I haven't done any legal analysis 
on that, however.
    Mr. Cummings. Let me tell you why I'm asking you that. In 
your report on page 20 you say, no FOIA officer said that 
requesters were disadvantaged because of their political party 
or particular area of interest. Is that accurate?
    Mr. Edwards. That's accurate.
    Mr. Cummings. Now your report highlights several 
initiatives that DHS has already taken to implement the 
President's and Attorney General's FOIA guidance on proactive 
disclosure and the presumption of disclosure that are not fully 
discussed in your written testimony. Can you elaborate on the 
steps the Department has taken to improve the FOIA operations 
since January 2009----
    Mr. Edwards. Yes, sir.
    Mr. Cummings [continuing]. As discussed in your report?
    Mr. Edwards. Yes, sir. DHS's privacy officer/FOIA officer 
have taken several steps toward this proactive measure. They 
have biweekly meetings, because it is a decentralized FOIA 
process. The components have their own FOIA offices, and the 
headquarters office as well as the privacy office is serviced 
by the chief privacy officer. They have training. They have 
biweekly conference calls. They send staff to help out. So 
there are a number of things that the FOIA officer has taken 
into consideration to improve the process.
    And, also, there are eight methods, posting calendars and 
historical information, FOIA logs. All of them are posted, and 
they also have the electronic reading room in place as well. So 
they have it done a number of things, and we credit them for 
that, but they need to go even further.
    Mr. Cummings. And, Mr. Verdi, just one question. You were 
saying that certain political review was inconsistent with 
Supreme Court decisions, is that right? Is that what you said?
    Mr. Verdi. Yes, it is inconsistent with Supreme Court----
    Mr. Cummings. So when Mr. Fong--you were here when he 
testified, right?
    Mr. Verdi. I was.
    Mr. Cummings. The general counsel. When he says it is not 
only legally permissible it is sound managerial practice for 
the Office of the Secretary to be informed of an inclination 
with the chief FOIA officer to play an active role in 
overseeing the Department's FOIA processes, that's not 
inconsistent with that, that is what you're saying?
    Mr. Verdi. I believe that statement is correct, but I 
believe that the criteria used in this circumstance are 
unlawful. The general statement that those individuals may play 
a role in such review I think is uncontroversial. The criteria, 
however, that it's political criteria, as opposed to statutory 
legal criteria based on the exemptions, that is where I differ 
as to this specific program.
    Mr. Cummings. My time has expired.
    Chairman Issa. I thank the gentleman.
    We now go to the gentleman from Arizona, Mr. Gosar.
    Mr. Gosar. Thank you, Mr. Chairman.
    Mr. Verdi, on a previous subcommittee we heard testimony 
from Mr. Earl Devaney from the RAT Board decided three agencies 
for most noncompliant with fraud, waste, and abuse, the second 
one being DHS. How does this go along with the process----
    Hold on 1 second. Let's go a step further.
    We actually heard Ms. Callahan talk about the Herculean 
efforts going to catch up on some of the bureaucracy or trying 
to catch up on some of these FOIA requests. And I'm having a 
hard time here. I'm a businessman. I'm a dentist. I actually 
watch government. Seven groups have to hang my television, when 
I am perfectly capable to do it myself. How does this process 
and how do these delays cause increased costs to the American 
taxpayer?
    Mr. Verdi. Well, it's clear that these sorts of delays 
result in increased litigation. EPIC has been forced to 
litigate FOIA requests to obtain the disclosure of records that 
we otherwise could have obtained directly from the agency 
without litigation costs and through the normal FOIA process if 
the deadlines had been met. And the way that this impacts 
across the American taxpayer is that the FOIA statute contains 
a fee-shifting provision and a cost-shifting provision. And 
what that means is that when FOIA requesters are required by 
the agency to go to litigation to force disclosure of records, 
they can obtain fees from the agency.
    EPIC litigates our own cases, and we have recovered fees 
from agencies on this basis. Those fees come directly from 
agency budgets; and they, at the end of the day, are funded by 
the taxpayer.
    Mr. Gosar. So we were building up a bureaucracy within a 
bureaucracy, right?
    Mr. Verdi. It is. And those costs are avoidable. If 
agencies work with requesters to meet statutory deadlines, then 
there is no need for litigation and there is no need to invoke 
that fee-shifting provision.
    Mr. Gosar. Do you see a reason if an individual--aside 
privacy issues, if an individual is given a FOIA why it 
shouldn't just be broadcast to anybody?
    Mr. Verdi. I see no reason, and I think affirmative 
disclosure by the agency can be a powerful tool for increasing 
transparency and increasing open government.
    Mr. Gosar. So once we go through one individual it could 
used like in a mass media aspect where we allow the individuals 
all around America to pick and choose through--like technology 
driven.
    Mr. Verdi. There are many technologies that enable one to 
many communications that the Department could leverage in order 
to better publicize the documents that are requested by 
individual FOIA requesters and make them more widely available.
    Mr. Gosar. So a definite streamlining process should be in 
order.
    Mr. Verdi. I agree.
    Mr. Gosar. Mr. Edwards, these FOIAs have had a kind of a 
chilling effect--or these delays have had a chilling effect on 
the FOIA requests. I'm also from Arizona, and we've got a lot 
of problems with our southern border. We've got a lot of 
violence. How do you think this could have implicated the 
process particularly of FOIA in maybe getting proper 
information out to the proper authorities?
    Mr. Edwards. Without getting into specific FOIA cases, my 
team went ahead and did a review of the FOIA process. And what 
we found was, even though in 2009 there was 103,000 and 2010 
there was 130,000, 70 percent of that was immigration alien 
files. There was still a number of FOIAs that, once they are 
completed, they could have gotten out of the door and they 
still ended up in the review process. The 1, 1\1/2\ percent 
they are talking about, the 662 which ended up in the 
significant review process, that also should not have been 
delayed. So I cannot really speak to the specific FOIA case, 
but this is what was our scope, and this is what we observed.
    Mr. Gosar. Were there potential cases involving our border 
patrol law enforcement on our southern border that could have 
been implicated by a FOIA? Do you know of such?
    Mr. Edwards. I don't know of such, sir.
    Mr. Gosar. I yield back the balance of my time.
    Chairman Issa. I thank the gentleman.
    Mr. Ross, are you prepared?
    Mr. Ross. Yes, sir.
    Chairman Issa. Then I yield you 5 minutes.
    Mr. Ross. Thank you, Mr. Chairman.
    Mr. Verdi, I understand your organization's made a few 
requests in the past. I guess over the years you've had some 
adequate responses and some inadequate responses. My question 
to you is that, based on your experience, have you seen an 
improvement in the last year for your FOIA requests or has it 
been declining or stayed the same?
    Mr. Verdi. Sadly, we have maintained a 100 percent 
noncompliance rate or, rather, the agency has maintained a 100 
percent noncompliance rate with EPIC's requests over the past 
year in terms of meeting statutory deadlines. So we have 
neither seen an improvement nor I think degradation in the 
response.
    Mr. Ross. And these have been based on just grammatical 
errors. Have there been substantive errors? Why have the 
requests not been granted in a timely fashion?
    Mr. Verdi. They simply have either not responded to the 
request, they have asserted exemptions again outside the 
statutory period that we then had to challenge through the 
administrative process. But, in any case, we did not receive 
documents prior to the 20-working-day deadline.
    In many cases, the agency also violated the deadlines for 
processing administrative appeals; and in one circumstance the 
agency missed its deadline to answer a lawsuit in which we were 
trying to force disclosure of documents.
    Mr. Ross. So, in other words, there has been absolutely no 
change, other than maybe worse.
    Mr. Verdi. I have not seen a material change, no.
    Mr. Ross. OK. Recently, there has been--since President 
Obama entered office, he has issued three memorandums relating 
to transparency and open government issues. Two of those 
memorandums, one regarding the Freedom of Information Act and 
one regarding transparency and open government, were released 
on the President's first full day in office. And then Attorney 
General Eric Holder instructed by memorandum the chief FOIA 
officer to support career staff by ensuring that they have the 
tools necessary to respond promptly and efficiently to FOIA 
requests.
    The President has emphasized on several occasions the need 
and requirement that there be an efficient and immediate 
response and transparency to FOIA requests. In fact, in January 
2009, he stated, in the face of doubt, openness prevails. The 
government should not keep information confidential merely 
because public officials might be embarrassed by disclosure 
because errors and failures might be revealed or because of 
speculative or abstract fears. Nondisclosure should never be 
based on an effort to protect the personal interest of 
government officials at the expense of those they are supposed 
to serve.
    My question to each of you is, do you feel that the 
Department's front-office review process comports with the 
President's objectives to FOIA?
    Mr. Edwards, I'll start with you.
    Mr. Edwards. Well, as we looked through the process, 
particular interest came to us about the significant review 
process, because that had changed from the 2005 practice. So 
starting September 2009, there was a review on concurrence----
    Mr. Ross. Right.
    Mr. Edwards [continuing]. Which really delayed the process. 
We have brought this to their attention, and we have a number 
of recommendations, and the Department has taken efforts to put 
the SharePoint site in place. It was 3-day notice, and now it 
has changed as of this Monday to a day. So I think the 
Department has made a number of changes.
    Mr. Ross. Just recently?
    Mr. Edwards. Just recently.
    Mr. Ross. Mr. Verdi.
    Mr. Verdi. I think that the basic act of flagging specific 
requests based on this criteria--this politically sensitive 
criteria is inconsistent with the President's commitment in 
this area.
    Mr. Ross. I yield back, Mr. Chairman.
    Chairman Issa. Would the gentleman yield?
    Mr. Ross. Yes, sir.
    Chairman Issa. Mr. Verdi, I would like you to elaborate on 
that.
    You earlier said, if I understood correctly--I will just 
paraphrase--that sending information to political appointees so 
that they are aware--let's just say a press office--sending 
them as they go out or substantially as they go out would not 
violate FOIA so that essentially the press office could respond 
when the press, now having this information, asks questions. 
That part is just fine, right?
    Mr. Verdi. Correct.
    Chairman Issa. So it's really the advanced notice and with 
the ability to act that really distorts the process. Whether 
they act to spin beforehand or they act to actually change the 
material release for both of you, that's where the line's 
crossed, isn't it?
    Mr. Verdi. Yes, it is. It is the combination of delay, 
which is unlawful insofar as it violates the statutory 
deadlines, and the use of criteria that have been labeled 
irrelevant by courts and by lawmakers to make a determination 
of a FOIA request. Those are the two aspects that I believe are 
objectionable in this circumstance.
    Chairman Issa. I thank you gentleman.
    And I guess I'm the last, so I will yield myself 5 minutes. 
This will be the close.
    First of all, for both of you, you're really dealing with 
662--to use the number that apparently is the most accurate 
number today. Those are the ones subject to delay or 
interference, not the rest of the files, as far as we know; is 
that right?
    Mr. Edwards. Yes.
    Chairman Issa. As to the IG and that's----
    Mr. Verdi. As far as I know based on the committee report.
    Chairman Issa. That has nothing to do with excess redacting 
that you may find in those process.
    Mr. Verdi, they talked about redacting. In your experience, 
how often have you prevailed when you finally get through the 
process of what you originally got versus what you ultimately 
are entitled to after you object to the amount of redacting? 
What's the ratio? How often do you prevail?
    Mr. Verdi. We almost universally prevail on at least some 
redactions.
    Chairman Issa. But there is a pervasive problem, clearly--
and I think the IG would agree--that if redacting is over 
relative to secondary review, even when it doesn't involve the 
662, that says something about getting from where prior 
Presidents have been to where this President rightfully said he 
wanted to go; is that right?
    Mr. Verdi. I think that overredaction is a real problem. It 
is a clear problem for FOIA requesters like EPIC. I think it is 
an even larger problem for FOIA requesters who have less legal 
expertise and are less able to challenge those redactions in 
the administrative process and the litigation process.
    Chairman Issa. Thank you.
    Mr. Edwards--by the way, thank you for your report. I 
realize the scope of your investigation was limited, very 
different than ours, but I thought it was, overall, very, very 
good work.
    Did you look at SharePoint and how it works in your 
investigation?
    Mr. Edwards. No, sir. We became aware of the SharePoint 
system, the new platform, and the 3 days where people can--the 
components can submit the responses and after 3 days they can 
get it out of the door. And that changed to a day this Monday. 
We have not had----
    Chairman Issa. Coincidence of our hearing notwithstanding.
    Mr. Edwards. We have not had an opportunity to assess the 
system because our scope was to look at the----
    Chairman Issa. Do you plan on looking at that, SharePoint?
    Mr. Edwards. If that's something the chairman wants us to 
do.
    Chairman Issa. I think the chairman and ranking member both 
would like you to look at it.
    One of my companies that I was affiliated with in the past 
has SharePoint. So I'm aware that one of the things that it 
actually has the power to do--and you'll have to see whether 
the version you bought as it is implemented--is in fact it can 
partial share. It's designed so that you can look at--for 
example, that political review could be limited so it wouldn't 
see the source of who it is from, at least in the macro sense.
    So I'd like you to look into it and give us a view on 
whether or not SharePoint could meet your high standards of 
eliminating this 1-day delay altogether, eliminating any chance 
that information, although publicly required and publicly 
disclosed, later when this material is put on the Web site 
could be not available to those doing the review.
    As the ranking member said, it smacks of the Nixonian era, 
who are my enemies--and if your enemy is Mr. Verdi or it is the 
Associated Press, the question is, why does a political 
appointee need to do it if in fact they are just reviewing on 
behalf of making sure the Secretary is informed?
    The question that remains, did your investigation--you're 
familiar with the deputy chief of staff to the Secretary having 
done her own reviews? In other words, doing her own searches 
for FOIA discovery. Are you familiar with that?
    Mr. Edwards. No, sir.
    Chairman Issa. That would be the other one that I am 
interested in. We found that, in some cases, rather than FOIA 
professionals, political appointees did their own reports. My 
understanding, and I think all of us who have ever done Google 
search understand, that the results are only as good as the 
input. So if you input less than would be responsive, you get 
back less than what a FOIA professional would get in order to 
fully disclose as the President envisioned.
    So although those were not the main topics today, I would 
appreciate it if you would look into them.
    I am particularly concerned with the idea that you have all 
these career professionals who are very capable of doing full 
disclosure and making redacting decisions, and then you have 
some of the material eventually delivered to the press and 
others having been self-selected by people. And whether they 
are political appointees or, as I found with the Minerals 
Management Service, what they thought was important to Congress 
to know and we found out with the British Petroleum problem was 
much less than we should have known.
    So those areas I would appreciate your looking into it as 
you see it fit and let us know.
    I want to take this moment to thank both of you. You did a 
lot of good work. Your report is good work. This committee has 
a special place in its heart for two groups. Sunlight people, 
who serve no purpose other than getting the truth out of 
government, which we benefit from; and the IGs, who are 
absolutely essential. We wouldn't even know about 90 percent of 
what we ultimately become interested in if not for your fine 
work in your field.
    So I want to thank you all. This was an important hearing. 
It is not the last Freedom of Information hearing. It is not 
the last sunset--sunlight type of a hearing but was an 
important one.
    I thank you, and we stand adjourned.
    [Whereupon, at 12:20 p.m., the committee was adjourned.]
    [The prepared statements of Hon. Edolphus Towns and Hon. 
Gerald E. Connolly follow:]




                                 
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