[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
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana ELIJAH E. CUMMINGS, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee PETER WELCH, Vermont
JOE WALSH, Illinois JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on March 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:]