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







 FOIA IN THE 21ST CENTURY: USING TECHNOLOGY TO IMPROVE TRANSPARENCY IN 
                               GOVERNMENT

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

                                HEARING

                               before the

                SUBCOMMITTEE ON TECHNOLOGY, INFORMATION
                POLICY, INTERGOVERNMENTAL RELATIONS AND
                           PROCUREMENT REFORM

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 21, 2012

                               __________

                           Serial No. 112-140

                               __________

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










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

                                _____

                  U.S. GOVERNMENT PRINTING OFFICE

74-376 PDF                WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001



















              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

   Subcommittee on Technology, Information Policy, Intergovernmental 
                    Relations and Procurement Reform

                   JAMES LANKFORD, Oklahoma, Chairman
MIKE KELLY, Pennsylvania, Vice       GERALD E. CONNOLLY, Virginia, 
    Chairman                             Ranking Minority Member
JASON CHAFFETZ, Utah                 CHRISTOPHER S. MURPHY, Connecticut
TIM WALBERG, Michigan                STEPHEN F. LYNCH, Massachusetts
RAUL R. LABRADOR, Idaho              JACKIE SPEIER, California
PATRICK MEEHAN, Pennsylvania
BLAKE FARENTHOLD, Texas













                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 21, 2012...................................     1

                               WITNESSES

Ms. Melanie Ann Pustay, Director, Office of Information Policy, 
  U.S. Department of Justice
        Oral Statement...........................................     4
        Written Statement........................................     7
Ms. Miriam Nisbet, Director, Office of Government Information 
  Services, National Archives & Records Administration
        Oral Statement...........................................    20
        Written Statement........................................    22
Mr. Andrew Battin, Director, Office of Information Collection, 
  Environmental Protection Agency
        Oral Statement...........................................    28
        Written Statement........................................    30
Mr. Sean Moulton, Director, Federal Infomation Policy, OMB Watch
        Oral Statement...........................................    43
        Written Statement........................................    45

                                APPENDIX

Ms. Mary Beth Hutchins, Communications Director, Cause of Action
        Statement for the record.................................    58

 
 FOIA IN THE 21ST CENTURY: USING TECHNOLOGY TO IMPROVE TRANSPARENCY IN 
                               GOVERNMENT

                              ----------                              


                       WEDNESDAY, MARCH 21, 2012,

                  House of Representatives,
                        Subcommittee on Technology,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 3:16 p.m. in 
room 2154, Rayburn House Office Building, the Honorable Mike 
Kelly [chairman of the subcommittee], presiding.
    Present: Representatives Kelly, Chaffetz, Walberg, 
Lankford, Meehan, Farenthold, Lynch, Connolly, Murphy and 
Speier.
    Staff Present: Kurt Bardella, Majority Senior Policy 
Advisor; Michael R. Bebeau; Molly Boyl, Majority 
Parliamentarian; Gwen D'Luzanksy, Majority Assistant Clerk; 
Adam P. Fromm, Majority Director of Member Services and 
Committee Operations; Justin LoFranco, Majority Director of 
Digital Strategy; Tegan Millspaw, Majority Research Analyst; 
Mary Pritchau, Majority Professional Staff Member; Laura L. 
Rush, Majority Deputy Chief Clerk; Peter Warren, Majority 
Legislative Policy Director; Jaron Bourke, Minority Director of 
Administration; Krista Boyd, Minority Deputy Director of 
Legislation/Counsel; Ashley Etienne, Minority Director of 
Communications; Adam Koshkin, Minority Staff Assistant; Suzanne 
Owen, Minority Health Policy Advisor; Rory Sheehan, Minority 
New Media Press Secretary; and Cecelia Thomas, Minority 
Counsel.
    Mr. Kelly. This is a hearing on FOIA in the 21st Century: 
Using Technology to Improve Transparency in Government.
    The hearing will come to order.
    This is the Oversight Committee's Mission Statement. We 
exist to secure two fundamental principles. First, Americans 
have a right to know that the money Washington takes from them 
is well spent. 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 the Federal bureaucracy. This is the mission 
of the Oversight and Government Reform Committee.
    I am going to allow myself an opening statement.
    Today's hearing is going to address the transparency in 
government and how advances in technology can be used to 
improve public access to information. This hearing will focus 
particularly on the Freedom of Information Act, or FOIA, which 
is the primary tool the public has to get information from 
their government.
    Transparency is extremely important and is necessary in 
order to have a government that is accountable to its people. 
Holding the government accountable and ensuring the public's 
right to know represents the fundamental mission of this 
Committee.
    When President Obama took office, one of his first actions 
was to release a new memo on FOIA directing agencies to adopt a 
presumption of openness and in a statement to the public, the 
President said ``Transparency and the rule of law will be the 
touchstone of this presidency.'' I would like to now play a 
short clip of his comments.
    [Video shown.]
    Mr. Kelly. Those are very strong words. I completely agree 
with President Obama's statements. However, during last week's 
Sunshine in Government Week, many transparency groups expressed 
concern with this Administration's compliance with FOIA. These 
concerns address a variety of issues including agency 
stonewalling, delays and excessive fees. Recently, the Central 
Intelligence Agency had a class action lawsuit filed against it 
for illegally discouraging requests by imposing significant 
fees without notifying requestors.
    The Department of Homeland Security has also been accused 
of charging exorbitant fees on FOIA requests. During this 
Committee's review of agency FOIA logs, we found one case where 
the agency charged the requestor over $70,000.
    The Department of Justice, which is responsible for setting 
agency FOIA compliance, has also been accused of defending 
Federal agencies when they choose to withhold documents. Last 
year when asked by the Supreme Court about President Obama's 
presumption of openness, the Department of Justice lawyer said, 
``We do not embrace that principle.''
    Clearly, there is more work to be done to ensure that 
citizens get prompt and substantive responses to their requests 
for government information. Technology is valuable tool for 
promoting transparency and is the focus of our hearing today.
    I look forward to hearing from our witnesses about ways to 
make government more transparent and more accountable to the 
public.
    Mr. Kelly. I now recognize the distinguished Ranking 
Member, Mr. Connolly, for his opening statement.
    Mr. Connolly. I thank the distinguished Chairman.
    As I said before, my great grandfather Kelly would be proud 
that there was a Kelly sitting in that chair. He would be even 
prouder if there was his great grandson sitting in that chair, 
but that is a different issue.
    We are delighted to have you all here today. I agree with 
the distinguished Chairman the first part of everything said 
and I disagree with the second part of everything he said. I 
actually believe there is a record of enormous transparency 
that is unprecedented in the Obama Administration. I actually 
believe this Committee, despite its best efforts, has actually 
allowed that to be documented.
    Last year, for example, the full Committee held a hearing 
on FOIA and, hyperbole and rhetoric aside, we discussed several 
FOIA advancements since 2009. First, the President issued the 
Executive Order the distinguished Chairman referred, directing 
agencies to err on the side of disclosure rather than secrecy, 
a reversal, I might add, of the Bush era policy, which 
certainly favored secrecy led by the distinguished Vice 
President, at the time, Dick Cheney.
    Second, agencies reduced the FOIA backlog, this is a fact, 
by 40 percent, eliminating 55,000 backlogged FOIA requests, an 
accomplishment by any measure. At the time, President Obama had 
only been in office two years. Last year, the number of FOIA 
requests increased dramatically and yet, 23 of 37 agencies, 
more than half, still managed to reduce their backlog. 
Unfortunately, over 250,000 new requests submitted to the 
Department of Defense and the Department of Homeland Security 
increased the government-wide FOIA backlog.
    While most agencies improved FOIA management substantially, 
it seems some could still learn from the best practices of 
others. To that end, I appreciate the EPA witness appearing at 
today's hearing to discuss its FOIA Module web portal. The 
EPA's portal, which works with multiple agencies, helps the 
public submit and track FOIA requests, search for information 
and view agency responses to FOIA requests. It allows agency 
employees to log in securely and to process applications.
    From relatively modest, upfront and annual operating costs, 
this portal allows EPA to save approximately $3.5 million over 
a five year period. This sufficient return on investment should 
encourage other agencies to consider adopting similar modules 
to achieve similar savings and efficiencies.
    Similarly, agencies are unlikely to be able to reduce FOIA 
backlogs or provide quality FOIA responses, a metric that is 
every bit as important as speed of responding if agencies are 
subjected to arbitrary reductions in the size of their 
workforce. We cannot have it both ways up here, Mr. Chairman. 
We cannot complain about the responsiveness on FOIA requests 
while we are hacking away at the Federal workforce and 
disparaging Federal employees in the process. We cannot allow 
antipathy toward the Federal Government to impair our ability 
to respond to citizens' needs. The Office of Personnel 
Management projects that retirements will increase some 18 
percent next year alone. In addition to understanding potential 
technology improvements for FOIA, we need to recognize staffing 
needs as well.
    I want to thank the witnesses for appearing today and I 
look forward to learning especially more about EPA's module to 
see how we can save money and perhaps help other agencies.
    Thank you, Mr. Chairman, for holding this hearing.
    Mr. Kelly. I thank my Irish colleague. I cannot say what my 
grandfather would have wished. There are more Kelly's and 
Connolly's than we can possibly keep track of.
    We are going to recognize right now our first panel: Ms. 
Melanie Ann Pustay, Director, Office of Information Policy, 
U.S. Department of Justice; Ms. Miriam Nisbet, Director, Office 
of Government Information Services, National Archives & Records 
Administration; and Mr. Andrew Battin, Director, Office of 
Information Collection, Environmental Protection Agency. Thank 
you all for being here.
    Pursuant to Committee rules, all witnesses must be sworn 
before they testify. Please rise and raise your right hands.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    [Witnesses respond in the affirmative.]
    Mr. Kelly. May the record reflect that all witnesses 
answered in the affirmative. You may be seated.
    In order to allow time for discussion, if you could, please 
limit your testimony to five minutes. We won't be real strict 
on that, but if you could, that would be great. Your entire 
written statement will be made a part of the record.
    Ms. Pustay, would you please open?

                            WITNESS

                STATEMENT OF MELANIE ANN PUSTAY

    Ms. Pustay. Good afternoon, Chairman Kelly, Ranking Member 
Connolly, and members of the Subcommittee.
    I am pleased to be here today to discuss agency use of 
technology in administering the Freedom of Information Act and 
the Department of Justice's continuing efforts to ensure that 
President Obama's ``Memo on the FOIA,'' as well as Attorney 
General Holder's ``FOIA Guidelines,'' are fully implemented.
    The Attorney General issued his new FOIA Guidelines during 
Sunshine Week three years ago and based on our review of Chief 
FOIA Officer reports and agency annual FOIA reports, it is 
clear that agencies are continuing to make significant, 
tangible progress in implementing the guidelines and expanding 
their use of technology to do so.
    In fiscal year 2011, despite being faced with a noticeable 
increase in the number of incoming requests, agencies were able 
to process over 30,000 more requests than the previous year. 
The government released records in response to 93 percent of 
requests where records were located and processed for 
disclosure, marking the third straight year in which such a 
high release rate was achieved. The government also improved 
its average processing time for simple requests.
    Agencies continue to meet the demand for public information 
by proactively posting information on their websites. Many 
agencies have also taken steps to make those websites more 
useful by redesigning them, by adding enhanced search 
capabilities and by utilizing online portals and dashboards 
that facilitate access to information.
    For example, the Department of Energy created a full text, 
searchable FOIA portal that provides access to documents 
previously released under FOIA. Similarly, numerous components 
of the Department of Defense made improvements to their 
websites and created systems for the proactive posting of 
contracts.
    I am particularly proud to report on the successes achieved 
by the Department of Justice. For the second straight year, DOJ 
maintained a record high 94.5 percent release rate for those 
requests where records were processed for disclosure. Perhaps 
even more significant, when the Department released records, it 
did so in full in response to 79 percent of requests. Despite 
three straight years of receiving over 60,000 requests, the 
Department also increased the number of requests processed and 
reduced our backlog by 26 percent.
    My office carries out the Department's statutory 
responsibilities to encourage compliance with the FOIA. As part 
of our work in implementing the Attorney General's Guidelines 
and our commitment to the initiatives in the National Action 
Plan for the Open Government Partnership, OIP is leading the 
effort to maximize the use of technology across Federal 
agencies to streamline the FOIA process and to improve the 
online availability of information.
    Just this past year, OIP reconvened the Interagency FOIA 
Technology Working Group to exchange ideas on this important 
topic. The group discussed various tools to assist with FOIA 
processing, including technology that can aid in the search and 
review of documents, shared platforms that allow for 
simultaneous review and comment on documents, and software that 
automatically identifies duplicative material.
    An area that I believe holds great promise in increasing 
the efficiency of agency FOIA processes is the use of 
litigation software in the FOIA context. Agencies often have to 
manually review hundreds, if not thousands, of pages of paper 
and electronic records for both responsiveness and duplication 
before disclosure analysis can even be made.
    By utilizing e-discovery tools to perform some of these 
necessary administrative tasks, agency FOIA staff can focus 
their efforts on reviewing records for disclosure and providing 
a timely response. OIP has already begun using this technology 
and we will continue to develop its capability with the goal of 
helping all agencies employ similar tools for the overall 
benefit of FOIA administration.
    We are also researching new technologies that will 
substantially improve the FOIA consultation process by allowing 
multiple components and agencies to review and comment on 
material simultaneously.
    With well over 1 million visitors since we launched last 
March, the Department's new government-wide FOIA website, 
FOIA.gov, has revolutionized the way FOIA data is made 
available to the public and has become a valuable resource for 
both requestors and agencies. The website graphically displays 
the detailed statistics contained in annual FOIA reports and 
allows users to compare data between agencies in overtime. The 
website also serves as an educational resource by providing 
useful information about how the FOIA works, where to make 
requests and what to expect through the FOIA process.
    Recently we expanded the function of the site even further 
by adding a new search tool that will help the public locate 
information that is already available on Federal Government 
websites. This new tool allows the public to enter a search 
term on any topic of interest and FOIA.gov will then search 
across all government websites at once and then capture 
documents posted anywhere on an agency website.
    We launched yet another new feature just a few weeks ago by 
including hyperlinks to the on-line request forms that agencies 
have to make it easier than ever to make a FOIA request. In an 
effort to improve FOIA processes and increase efficiency, there 
are over 100 offices across the government that have already 
developed the capability to receive requests online.
    I am very pleased to report that OIP itself, my office, has 
just launched an online capability. Requestors can now make 
requests and file administrative appeals online. Our portal 
also allows the public to establish their own user accounts and 
they can track the status of their request or appeal at any 
time and receive their determination from OIP through the 
portal.
    Looking ahead, we will continue to work on administration 
of the FOIA and to enhance government transparency. We will be 
looking to explore new ways to utilize technology to achieve 
these goals. We look forward to working with the Committee on 
these important matters.
    Thank you.
    [Prepared statement of Ms. Pustay follows:]



    Mr. Kelly. Thank you very much, Ms. Pustay.
    Ms. Nisbet.

                   STATEMENT OF MIRIAM NISBET

    Ms. Nisbet. Good afternoon, Chairman Kelly and 
Representative Connolly.
    Thank you for the opportunity to appear before you to 
discuss the Freedom of Information Act and information 
technology.
    I heard from your opening remarks that you both have a 
sense of some of the challenges that face the government, the 
15 Cabinet level departments and the 84 agencies that 
administer the FOIA. We certainly have seen that.
    As you know, the Open Government Act of 2007, which amended 
the FOIA, created our office to do several things: to review 
agency policies, procedures and compliance with the law; to 
recommend policy changes to Congress and the President to 
improve the administration of FOIA; and also to resolve 
disputes between FOIA requestors and the Federal agencies.
    We opened our doors two and a half years ago in September 
2009. Our work has reached customers in 48 States, the District 
of Columbia and 13 foreign countries. Individuals, including 
veterans, researchers, professors, journalists, attorneys and 
inmates comprise more than three-quarters of our workload. Our 
cases in fiscal year 2011 involved 42 Federal agencies 
including all 15 Cabinet level departments.
    In carrying out our mission, therefore, we do see how 
agencies are using technology every day to administer FOIA, 
tracking requests, searching for and reviewing records, posting 
frequently requested records online, and using agency websites 
to provide information about FOIA resources.
    In 1996, Congress passed the Electronic Freedom of 
Information Act amendments or the e-FOIA to clarify that the 
law applies to electronic records as well as traditional paper 
records. Sixteen years later, agencies are still working to 
fully implement the e-FOIA. Agencies continue to improve and 
modernize their processes but improvements can still be made, 
as you both have noted.
    Some obstacles that we have noticed are outdated technology 
and challenges posed by the need to properly manage electronic 
records. Certainly my parent agency, the National Archives and 
Records Administration, takes those needs and concerns to heart 
and works on those every day.
    Mr. Battin, from the Environmental Protection Agency, is 
going to give you details of the FOIA Module, a one-stop shop 
portal for FOIA requests. My agency is a partner in that 
project with EPA and the Department of Commerce because we 
believe it has great potential to improve the public access to 
government information and to save taxpayers money by sharing 
agency resources and adapting existing technology. Other 
departments and agencies have expressed interest in the 
partnership and we hope they will join us. The FOIA Module is 
scheduled to be launched for agencies this summer and unveiled 
to the public in October.
    An area in which FOIA and technology intersect is with 
proactive disclosure of government records. The e-FOIA 
amendments require every agency's website to include certain 
information made public under FOIA. Agencies are continuing to 
make additional information available on their websites in 
rather staggering amounts.
    In order to ease the public's navigation across agency 
websites, we are encouraging them to standardize FOIA sites to 
ensure a customer friendly and efficient way for the public to 
find FOIA resources. Last week in observance of Sunshine Week, 
the national initiative to promote open government, OGIS posted 
on its blog some suggestions to improve the FOIA process 
administratively such as top-down support for FOIA, developing 
with stakeholder input, an easy to use template for agencies to 
customize; standardizing and indexing online FOIA reading 
rooms; and providing full contact information to designated 
FOIA professionals.
    Finally, OGIS has observed that collaboration across 
agencies is a cost effective and beneficial tool for exploring 
ways to improve the administration of FOIA through existing 
technology. There are several efforts underway in the Federal 
FOIA community to look for ways to collect the information 
technology requirements of FOIA professionals and communicate 
those to companies that create products for them to use to 
identify technologies that agencies now use that can be 
repurposed for FOIA; and to share knowledge about FOIA issues 
such as complex database requests and best practices to help 
agencies handle them better.
    We appreciate the Subcommittee's efforts to examine ways 
that FOIA can work better and more efficiently for everybody, 
the public and the agencies. We thank you for the opportunity 
to testify.
    [Prepared statement of Ms. Nisbet follows:]



    Mr. Kelly. Thank you, Ms. Nisbet.
    Mr. Battin.

                   STATEMENT OF ANDREW BATTIN

    Mr. Battin. Good afternoon, Chairman Kelly, Representative 
Connolly and members of the Subcommittee.
    My name is Andrew Battin and I am the Director of the 
Office of Information Collection in the U.S. Environmental 
Protection Agency's Office of Environmental Information.
    I am pleased to appear before you today to discuss the FOIA 
Module developed in partnership with the Department of Commerce 
and the National Archives and Records Administration. I am also 
pleased to join my colleagues from NARA and DOJ on this panel.
    EPA is committed to the implementation of the 
Administration's open government and transparency goals. EPA 
demonstrated this commitment by striving for reduction in 
processing time of FOIA requests and recognizing that 
information technology creates an opportunity to improve our 
FOIA performance.
    EPA has sought continually to be proactive in improving our 
FOIA administration and to be innovative in the use of 
technology to enhance our FOIA performance, both internally and 
for the public. We made it a priority to deploy a system to 
help track requests and produce EPA's annual FOIA report.
    Further, the agency believes that efforts made to improve 
processing and extend public access to FOIA responsive 
documents are very much in keeping with the principles of the 
Administration's open government directive. In embracing the 
directive mandate for greater transparency, EPA has posted 
databases from multiple program areas to its website containing 
information frequently requested under FOIA.
    To build on our strong record of transparency, innovative 
use of available technologies and overall FOIA performance, in 
June 2010, our Deputy Administrator, Bob Perciasepe, launched a 
cross-EPA workgroup to identify ways to improve further still 
the efficiency and consistency of our FOIA processes, to 
explore the use of tools to inform citizens, as well as to 
update regulations and policies.
    The workgroup report included a recommendation to invest in 
tools and technologies that streamline FOIA operations and 
increase public access and transparency. As managing partner of 
regulations.gov, we explored whether the eRulemaking Program's 
technology infrastructure could be used to accept FOIA 
requests.
    We procured a third party technical and cost feasibility 
assessment that concluded that eRulemaking Program's technology 
infrastructure could be used to accept FOIA requests, store 
them in a repository for processing by agency staff and allow 
responsive documents to be uploaded into the system and posted 
for public access.
    These analyses indicated that leveraging the eRulemaking 
technology infrastructure could be accomplished with a fairly 
modest investment. EPA shared the analyses with the Federal 
Government's two FOIA leads, the Department of Justice and the 
National Archives Administration, to validate the approach of 
developing a FOIA module.
    The module would automate FOIA processing and reporting, 
store FOIA requests and responses in an electronic records 
repository and enable the public to search, access and download 
previously released FOIA responses for participating agencies. 
The module would also accumulate statistics on FOIA actions 
throughout the year and summarize this information for an 
agency's annual FOIA report.
    Later, other agencies were invited to learn about and 
explore the use of a possible FOIA Module. Through this broader 
outreach, requirements were developed and refined for how such 
a FOIA Module could operate. We continued our conversations 
with our Federal partners. Based on the assessment, and a 
number of agencies expressed interest in the FOIA Module.
    Following finalization of the workgroup's recommendation 
for a FOIA Module, EPA entered a partnership with NARA and the 
Department of Commerce. These agencies provided funding to help 
design and develop such a solution. The construction and 
deployment of the system is estimated to cost $1.3 million. The 
module is scheduled for partner agencies to use later this 
summer and available for public submissions by October 2012.
    As development of the FOIA Module recently reached a 
sufficient state of definition to clarify how its component 
capabilities are expected to work, managers in both EPA and DOJ 
recognized that it has become timely to harmonize EPA's efforts 
on the FOIA module with the functions provides by DOJ's 
FOIA.gov now and in the future.
    Accordingly, we have begun a series of conversations about 
each organization's electronic tools to understand in greater 
detail any near term, technical coordination needs and to 
identify potential future complementary capabilities. We look 
forward to continuing productive, interagency collaboration 
moving forward on this important work.
    I appreciate the opportunity to provide this testimony and 
would be happy to respond to any questions.
    [Prepared statement of Mr. Battin follows:]



    Mr. Kelly. Thank you all. You complete written testimony 
will be entered in the permanent record.
    You were all within the five minutes. That was very good 
and usually doesn't happen here.
    I recognize myself for the first questions.
    Ms. Pustay, DOJ says it is going to develop its own portal. 
Why doesn't it just choose to work with the EPA on theirs?
    Ms. Pustay. We actually just launched our portal, so we are 
done with the portal we have. As I mentioned in my testimony, 
there are 100 agencies that have online request portals, so 
this has been a wave of use of technology across the 
government. As I mentioned, one of the focuses of the Attorney 
General's FOIA guidelines was to encourage agencies to utilize 
technology, so we have had a whole range of options being 
explored across the government. Now, as I said, there are up to 
over 100 agencies with online request portals.
    As I mentioned, as a new feature for FOIA.gov is we are 
including on that website hyperlinks to all the online request 
forms available across the government to make it easy to reach 
them through FOIA.gov.
    Mr. Kelly. DOJ is responsible for setting FOIA policy and 
compliance across the government, as well as litigating on 
behalf of all FOIA lawsuits. Has there ever been a case where 
the Department of Justice has disagreed with an agency 
withholding information and refused to defend it?
    Ms. Pustay. There have definitely been cases where 
additional information was released as a result of application 
of the Attorney General's Guidelines. We saw that most 
especially in the immediate wake of issuance of the Guidelines. 
That has been three years ago, so we have been working very 
hard to train agencies, implement and focus on the new 
requirements to apply foreseeable harm standards, to not 
withhold information just because you legally can, some of the 
things we saw the President mention in the video that you 
showed a moment ago.
    At this point, we have a nice engrained understanding of 
the provisions of the Attorney General's Guidelines across the 
government.
    Mr. Kelly. Last year, a DOJ lawyer told the Supreme Court 
that ``The DOJ does not embrace the principle of openness.'' 
Can you explain that disconnect between the President's memo 
and the DOJ's actions?
    Ms. Pustay. I am happy you asked me that so I could clear 
that up.
    As I understand it, the exchange that occurred during the 
course of the Supreme Court argument was simply not that there 
was a disagreement with the presumption of openness, the actual 
question being asked of the attorney was whether FOIA 
exemptions should be interpreted narrowly.
    Of course they should be. We have Supreme Court precedence 
that says FOIA exemptions should be interpreted narrowly, but 
there is a corollary principle and that is that FOIA exemptions 
must also be given meaningful reach and application consistent 
with the fact that Congress included in the FOIA exemptions for 
a purpose, to protect vital interests like personal privacy and 
national security.
    He was attempting to explain that the concept of narrow 
interpretation of exemptions had to be analyzed in reference to 
the corollary principle, that exemptions must also be given 
meaningful reach.
    Mr. Kelly. Thank you.
    The purpose of the hearing is to examine ways to use 
technology to improve transparency. What do you think are the 
most important advances in this area? What are the biggest 
challenges? Each of you has very unique perspectives on this. 
Mr. Battin, why don't you start? We will give Ms. Pustay a 
chance to catch her breath.
    Mr. Battin. I certainly think the biggest challenge we 
face, and one of the main reasons we went into development of 
the Module, was to improve our efficiencies in being able to 
meet the public demand. Through the use of the Module, we are 
internally focusing on improving the process to answer FOIAs, 
bring consistency to the process and create a repository for 
future use.
    For the public, we are increasing transparency, allowing 
them to submit online, track their progress throughout and have 
access in the end. All these are challenges that we face 
through some of our antiquated approaches.
    Mr. Kelly. Ms. Nisbet?
    Ms. Nisbet. Representative Kelly, I think that the 
partnership that you heard about and the effort to build a one-
stop shop portal really gives you an indication of where a lot 
of people think the future of technology is going to take us 
with having something that is really easy for the public so 
they don't have to go to 350 places to make a request, to be 
able to quickly see what information has been already disclosed 
and is publicly available so maybe they don't even have to make 
a request.
    On the other side is to make easier for agencies to share 
the resources they have and also to process requests in a more 
efficient way. We have many different systems out there and 
trying to find ways we can actually share with each what we 
already have with each other instead of coming up with so many 
different solutions I think this has some natural cost 
avoidance built in.
    Mr. Kelly. Thank you.
    Ms. Pustay?
    Ms. Pustay. I will mention something we haven't talked 
about yet so far this afternoon.
    One important thing is as agencies have been working very 
diligently to proactively post information, to anticipate 
interest in records and put those records, sometimes more than 
records, put databases, put whole websites up dedicated to 
particular topics, they are really working to try to anticipate 
interest in records and get information out to the public 
before a request is even made.
    There are lots of releases being made by agencies separate 
and apart from FOIA. That is great because that is part of the 
Attorney General's Guidelines as well.
    One thing we think is important is to have the ability to 
capture all that information. That was one of the reasons we 
put on FOIA.gov the find tab so that if you are a researcher or 
a student, and you're looking for information on a particular 
topic, there is a way to look across agency websites and 
capture them.
    Going to the next level, what we are working on now at the 
Department is metadata tagging. Our plan is to work with GSA to 
actually have standardized ways to tag records before they are 
posted, to make the search process for them even that much more 
precise. We have to be careful as agencies are very 
enthusiastically putting information up on the web. Websites 
can easily become overwhelmed with data. It is very important 
that there be a way to find the information you are looking 
for.
    Mr. Kelly. Thank you.
    I will now recognize the Ranking Member, Mr. Connolly.
    Mr. Connolly. Thank you, Mr. Chairman, and welcome to our 
panelists.
    I spent 14 years in local government before coming here and 
in the Commonwealth of Virginia, we actually have some of the 
most stringent FOIA laws in the United States. By the way, the 
FOIA laws do not apply to the State Legislature, of course.
    My schedule was subject to FOIA, my phone lines was subject 
to FOIA, my emails were subject to FOIA. I had to deal with 
FOIA requests personally and as chairman on behalf of the 
county government and sometimes they would be overly broad 
requests that were not very specific. It was very hard to 
respond to them without producing reams of material that 
presumably the requestor didn't really intend.
    A lot of times if the FOIA came from the press and were 
overly broad to try to make sure they didn't draw it so 
narrowly that we only juridically answered the exact question 
they made. They tried to often make them overly broad and we 
would have to negotiate with them and say you need to be more 
specific, otherwise you will get the Encyclopedia Britannica 
printed.
    I have seen the challenges of FOIA. All good attorneys, and 
certainly our county attorney, always advised agencies and 
individuals in the local government, whatever you do, do not 
stall, do not stonewall, don't try to create barriers to 
responding in a timely fashion or you can find yourself 
prosecuted, you can find yourself in violation of the law.
    With that introduction, Ms. Pustay, maybe I can start with 
you, presumably there is also similar guidance given to Federal 
agencies in terms of by and large you have to assume it is a 
legitimate request and be responsive. Would that be fair?
    Ms. Pustay. Absolutely. There is a whole range of things 
that agencies do routinely and certainly as part of our 
outreach and training to agencies, my office conducts training 
throughout the year. Every year, we reach thousands of agency 
employees. There are many different techniques actually to use 
when working with requestors.
    The big advantage of open communication with requestors 
about what they are looking for is that if the requestor can be 
more precise, the information can be provided to them more 
promptly. Requestors understand that and are always very happy 
to work with agencies. Maybe not always very happy, but usually 
very happy to work with agencies to help focus their request.
    Mr. Connolly. Right.
    Ms. Pustay. Also, there is a real push right now across the 
government to increase efficiency again as part of the AG's 
Guidelines specifically directed toward looking for more 
efficient ways to respond to requests. We are seeing that 
agencies are processing more requests. They processed 30,000 
more last year, releasing more information.
    There is a bigger picture here where agencies overall are 
looking to be cooperative to implement the FOIA guidelines.
    Mr. Connolly. If I could ask, maybe Ms. Nisbet wants to 
chime in here too, the Chairman alluded to some barrier, some 
problem still going on, the cost of providing material 
sometimes seemingly exorbitant and delays. So, those are two 
metrics I wonder are we measuring that we are bringing down the 
response time so that we are more responsive? Are we also 
measuring the other impediments that the Chairman rightfully 
cited such as the cost of providing the material requested so 
that we are not needlessly creating barriers for people?
    Ms. Nisbet. I think trying to deal with those kinds of 
early speed bumps is something I know my office has worked very 
hard on. As you know, part of our mission is resolving disputes 
between FOIA requestors and the agency. We deal with those 
every day. Fees and delays continue to be some of our largest 
numbers of cases.
    They are still a problem but also we see a corresponding 
emphasis on customer service, on picking up that phone as 
quickly as you can and talking to the requestor to be able to 
talk about the scope of the request so that you don't have lots 
of time spent looking for something the requestor is not even 
interested in. Those are very, very fundamental customer 
service things that we certainly are seeing people trying to do 
a better job of.
    Mr. Connolly. Mr. Chairman, I see my time is up. How does 
the Chair wish to proceed? I do have a few more questions.
    Mr. Kelly. We will do another round.
    Mr. Connolly. All right. I yield to the Chair.
    Mr. Kelly. The Open Government Act changes fee waivers and 
statuses and I know there is some confusion out there. We 
played the President's remarks and maybe created a Pandora's 
Box but didn't mean to. When we start telling people about 
openness, transparency and everybody will have access to almost 
everything and anything you want and anytime you want it, I 
understand.
    I am not a lifetime politician. In fact, I have only been 
here a year or so. I understand you can say things that 
sometimes sound good in front of a group and you turn back to 
the agencies that handle them and say, my God, I wish I hadn't 
said that, it creates a lot of problems for us, but there are a 
lot of lawsuits, are there not? Why do we have so much trouble 
with the excessive fees? Ms. Nisbet, maybe you can weigh in on 
that. I know the Ranking Member asked something about that but 
there is some concern out there.
    Ms. Nisbet. Representative Kelly, there is a lot of 
confusion both amongst requestors and agencies about how the 
fee categories work and the fee waivers. I think this is one of 
the first things a FOIA public liaison officer, a FOIA customer 
service center can do, is to work with the requestors to 
explain them.
    As I mentioned, my office has a number of cases that 
revolve around fees. That can definitely be a barrier but if 
you walk through what the requirements are both for the fee 
category you are in as well as the fee waivers, it can really 
help.
    I will give you an example. Last year, we had a requestor 
come to us concerned because it had gotten a bill for $450,000 
to process a big database request. Working with the agency, 
which was very cooperative, and the requestor who was seeking 
to avoid the lawsuit, to resolve those issues pretty quickly 
and get to the substance of the case.
    Mr. Kelly. Ms. Pustay, in your opening statement, you said 
93.1 percent of requests were handled. There is some confusion 
on that. The White House claims 93 percent but they didn't 
include cases that were no response of record, cases where the 
request was considered by the agency to be improper, or cases 
where the requestor did not pay fees for records. When all 
those cases are included, the response rate drops down to only 
a 65 percent rate and a lot of those are heavily redacted.
    When we talk about response rate, the American public 
oftentimes feels we are being gamed, they are being told one 
thing and the actual figures seem to go in a different 
direction. Maybe you could clear up that for us?
    Ms. Pustay. Sure. I am happy to and I am glad you asked 
that question.
    We refer to it as a release rate actually. First, in terms 
of the overall numbers, to address your last point, all the 
detailed statistics about the numbers of requests that are 
handled by an agency, the disposition of the request, to get to 
your comment about how much time it takes, all of that is 
incredibly detailed information and is all required to be 
prepared very year by every single agency as part of their 
annual FOIA report. All this information is publicly available.
    We then take all that information and have it on FOIA.gov 
now where it is easily manipulated, compared and contracted. In 
terms of accountability and transparency about how agencies are 
doing, the annual FOIA reports and FOIA.gov's graphic 
representation of that data is what should give you confidence 
that you are seeing the statistics however you want them.
    To get to your question about a release rate and how we 
calculate it, the reason we calculate it by not every single 
request that is processed, we calculate a release rate based on 
those requests where there are records to be processed because 
it is only for those requests that the agency has the decision 
to make, do I release or do I withhold.
    Out of those requests, where an agency is actually looking 
at the record and deciding, do I release or withhold, in 93 
percent of those requests information is released either in 
full or in part.
    Mr. Kelly. So the 65 percent we talk about is an actual 
rate. Is that more accurate than the 93 percent?
    Ms. Pustay. Respectfully, it doesn't make sense to 
calculate a release rate based on the requests where there were 
no records, for example. Where there are no records, the agency 
never has a chance to say I want to release or I am going to 
withhold because there physically are no records in response to 
that request. To have the release rate be meaningful, it is 
based on those requests where there are records.
    Mr. Kelly. When we respond to people, we are setting the 
parameters saying this is what we could do based on what we did 
have and what we came away with?
    Ms. Pustay. Exactly.
    Mr. Kelly. So there is a clarification on that. That is how 
you come up with the 93 percent.
    Ms. Pustay. We say the release rate is based on looking at 
the numbers of requests where records were processed for 
disclosure. That is the reason why I say processed for 
disclosure.
    Mr. Kelly. Okay. That is the key, processed for disclosure?
    Ms. Pustay. Yes.
    Mr. Kelly. Not on number of requests?
    Ms. Pustay. Exactly.
    Mr. Kelly. Mr. Connolly?
    Mr. Connolly. Thank you, Mr. Chairman.
    Ms. Pustay, picking up on something the Chairman was 
referring to, why would we ever redact something in a FOIA 
response?
    Ms. Pustay. Of course, there are nine exemptions that 
Congress put into the statute to provide protection for a range 
of information. Personal privacy is the most frequently used 
reason to protect information.
    Mr. Connolly. First of all, Congress provided for that?
    Ms. Pustay. That is right.
    Mr. Connolly. Secondly, that requires someone to actually 
go over the documents to make sure we are appropriately 
redacting pursuant to these nine exemptions?
    Ms. Pustay. Exactly.
    Mr. Connolly. That takes a little time which could add to 
the backlog not because anyone is trying to prevent information 
from getting into public hands but because actually we are 
trying to protect the innocent and sensitive material?
    Ms. Pustay. Of course.
    Mr. Connolly. Let me ask a different question of you, Ms. 
Nisbet, because your office is sort of the ombudsman for the 
Federal Government.
    Surely there is a difference between a FOIA request at EPA, 
for example, I want to see the studies on lead in water, I want 
to see the empirical evidence that led you to decide to 
regulate that issue, no national secrets there versus a FOIA 
request that says I want to see the Department of Homeland 
Security's assessment of strategic assets and the plans to 
protect them, how many are vulnerable and how many are secure, 
I would like to see that, please. Fair enough? There is a 
difference?
    We have to manage those two requests even though they are 
both FOIA requests with different levels of sensitivity, 
awareness and scrutiny. Would that be fair?
    Ms. Nisbet. That is correct, sir.
    Mr. Connolly. Just using those two examples, in terms of 
the time, resources, backlog, responsiveness, protecting 
national assets, maybe I am a terrorist making that request 
using the Freedom of Information Act because I want to save 
myself research time, I want you to do it. How do we protect 
ourselves and how do we differentiate in these requests as a 
Federal Government between one and the other?
    Ms. Nisbet. That is why you have very dedicated FOIA 
professionals who work on these kinds of issues every day.
    The processing of requests, as you point out, can be fairly 
simple particularly when there is an easy search in one place 
and the response is, we don't have any records, to agencies or 
departments that are quite decentralized and a search would 
require, for example, with the State Department, not only 
looking in Washington but looking overseas.
    As well and checking for whether or not there were 
responsive records, gathering those records, determining 
whether there they are really responsive, reviewing them and 
particularly if they deal with classified information or with 
sensitive information whether it is financial, personal 
privacy, whatever the nature of the records, or maybe all of 
those in one document, reviewing them carefully to be sure a 
release to one is a release to all and that a release to one 
person who might be a very legitimate researcher is not going 
to also be turned into something harmful by a requestor who 
doesn't have a beneficial idea.
    Mr. Connolly. In other words, we have to sometimes exercise 
some prudent judgment?
    Ms. Nisbet. Every day.
    Mr. Connolly. When we do that, it is always, in a sense, an 
arbitrary line. We are drawing a line saying no, we are not 
going to go on that there side. It is a matter of opinion 
whether that is the appropriate line or it should be moved out 
here or whether there should be any at all. Nonetheless, the 
people making that judgment have to make that judgment?
    Ms. Nisbet. And they have to make a decision so that the 
requestor can know what are you going to get, are you going to 
get anything, how many pages or are you not going to get 
anything, and also that they get an answer.
    Mr. Connolly. Right. A lot of our economic competitors in 
the world don't have FOIA. You can't go to Beijing and FOIA 
their plans for X, Y, Z, or Tehran or lots of other places.
    Mr. Chairman, would you indulge me just to ask Mr. Battin 
if he could take a little bit of time to talk us through how 
their portal works and why so many people see it as perhaps a 
model for other Federal agencies. By the way, where are you 
from?
    Mr. Battin. I thank you for both questions, Congressman. I 
am from Pennsylvania. I grew up in Pennsylvania.
    In terms of how the Module works, the Module is designed to 
provide a single place for the three participating agencies to 
allow the public to come in and submit a request, to track that 
request in a very open and transparent way so they know within 
the 20-day period that we are looking to respond where in the 
process their request is.
    Also it is designed to give them an opportunity to have a 
dialogue if there are issues that need to be clarified with the 
FOIA staff and the requestor. There is now a forum to do that.
    Next is providing access to the public to receive those 
answers so they can go to a particular spot, not only look at 
their request and answers to that request but other questions 
that may have been asked. That is kind of the public side of 
this.
    On the inside internal to the benefits to the agencies, a 
lot of what we are stressing is processing efficiencies, the 
consistency in responses, having that repository for reuse so 
that we don't have to begin answering questions from the 
beginning again. Our current solutions don't have that 
repository that we can go back to and answer a question day 
forward. That is a huge resource drain when we have to recreate 
the answers time and again.
    Also providing referrals to other agencies as is necessary, 
within the system we have the ability to refer to our 
partnering agencies if there is a question or maybe it should 
be directed to them and providing that ability to enable a 
repository for searching for other agency purposes such as 
electronic discovery. That is something Ms. Pustay mentioned in 
the beginning. Having that repository of electronically 
discovered information preassembled is very important.
    Mr. Connolly. Thank you.
    Mr. Chairman, thank you for your indulgence.
    Mr. Kelly. Thank you, sir. It is nice working with you. It 
is easy.
    That is going to end the questioning for the first panel. 
We appreciate your being here today.
    I think we would both agree, I have only been with Mr. 
Connolly for a year, the service you provide our country is 
very great. Sometimes you have to appear before a committee and 
it seems maybe we are at you for a certain reason, but we do 
represent the people of the United States and we think it is 
very important that there is a clear and transparent approach 
to everything we do in this government.
    Thank you so much for being here today. We appreciate your 
indulgence.
    We are going to take a short recess and then we will have 
the second panel.
    Mr. Connolly. I thank you for your sentiments, Mr. 
Chairman.
    [Recess.]
    Mr. Kelly. We will now welcome our second panel. Mr. Sean 
Moulton is the Director of Federal Information Policy at OMB 
Watch. Mr. Moulton, thank you for being here with us today.
    Pursuant to Committee rules, all witnesses must be sworn 
before they testify. Please rise and raise your right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    [Witness responds in the affirmative.]
    Mr. Kelly. May the record reflect that the witness answered 
in the affirmative.
    In order to allow time for discussion, if you could, please 
stay within the five minutes. As you have seen, we are pretty 
liberal with that. I am not usually liberal that way but 
sometimes I am. Being beside Mr. Connolly, I am being a little 
more liberal today.
    We are going to allow you your opening statement somewhere 
in the five minute range, please.

   STATEMENT OF SEAN MOULTON, DIRECTOR, FEDERAL INFORMATION 
                       POLICY, OMB WATCH

    Mr. Moulton. Chairman Kelly, Ranking Member Connolly, 
members of the Subcommittee, thank you for inviting me to 
testify today on the important topic of how technology can 
improve implementation of the Freedom of Information Act.
    My name is Sean Moulton. I am the Director of Federal 
Information Policy at OMB Watch, an independent, non-partisan 
organization that advocates for more open, accountable 
government.
    Improving citizen access to public information has been an 
important part of our work for 30 years. We also have 
experience using technology to make government information more 
available to the public online.
    I will begin with a look at the current situation of FOIA 
implementation. Last week, OMB Watch published our assessment 
of FOIA performance at 25 agencies. Our assessment evaluated 
processing of FOIA requests, the rates of requests granted and 
the use of exemptions. Across these issues, the news is mixed, 
with progress in some areas as well as a few setbacks.
    In 2011, the Obama Administration increased its FOIA 
processing and processed the highest number of requests since 
2005. Unfortunately, the number of requests received increased 
even faster, resulting in a rise in the overall backlog. 
Although many agencies have made progress in reducing their 
backlogs, continued improvement is still needed.
    In terms of granting requests, 2011 added to the Obama 
Administration's three-year average of a 95 percent granting 
request rate whether in full or in part. This is higher than 
the Bush Administration's average of 93 percent or the last 
years of the Clinton Administration at 89 percent. However, the 
Obama Administration more often partially granted requests 
compared to the previous Administrations.
    Finally, on exemptions, the total use of exemptions dropped 
by 7 percent. Notably, the use of the most discretionary 
exemption declined as well in 2011. Use of Exemption 2, 
internal agency rules, decreased by 63 percent. Use of 
Exemption 5, for interagency memoranda, fell by 14 percent. 
These declines come after steady growth in the use of both 
exemptions during the Bush Administration.
    Turning now to the issue of technology, OMB Watch strongly 
believes that technology can improve FOIA performance. For 
several years, OMB Watch has advocated for the development of a 
robust electronic FOIA system that incorporates three main 
improvements: allowing the public to submit and track requests 
electronically at a centralized site; improved communication 
through the use of email; and to post online in a searchable 
system documents released through FOIA.
    Many of these needed reforms are embodied in the FOIA 
portal project being led by EPA. The project will provide a 
single interface for the public to submit requests to any 
participating agency and would modernize the infrastructure 
agencies used for processing, tracking requests and publishing 
information. When completed, we believe the FOIA portal will 
help agencies process requests faster at a lower cost while 
expanding online disclosures and improving requestors' 
experience.
    Mail delays and postage costs would be reduced through 
online communications. The portal would also speed up 
consultations and referrals between agencies. Released 
documents would be uploaded to a public website available both 
to the requestor as well as to any other searchers. Withheld 
documents would remain in the system restricted from public 
access but quickly available to agency review in the event of 
an appeal.
    Although the project is at an early stage, we believe it 
merits support from Congress. Congress should make it clear 
that it expects every agency to participate in such a 
centralized e-FOIA system. Congress can also play a helpful 
oversight role to ensure that such a system maintains high 
standards of usability for the public.
    In addition to the FOIA portal, OMB Watch recommends other 
key technology reforms to improve FOIA. These suggested reforms 
include: update the electronic FOIA provisions to strengthen 
the standard for publishing released FOIA documents online; 
expand the types of information agencies are required to 
proactively post on their websites; establish a government-
wide, online document disclosure goal; and update the e-
Government Act to better address electronic records management 
and disclosure needs in IT procurement decisions.
    In conclusion, OMB Watch is fully committed to the 
Committee's goals of using modern technology to improve 
transparency. With the right reforms and investments, FOIA can 
be quicker, easier to use and more proactive in disclosing 
information to the public.
    I sincerely thank you for the opportunity to address this 
Committee and I look forward to your questions.
    [Prepared statement of Mr. Moulton follows:]



    Mr. Kelly. Thank you.
    Again, everyone is right on time today within five minutes.
    You made a comment in your opening remarks when you were 
saying the Administration answered it harshly. What does that 
mean?
    Mr. Moulton. Partial. I am sorry if I didn't pronounce it 
properly. Partial disclosures where a requestor would ask for a 
lot of documents or even one document and it might be redacted 
or some of the documents disclosed but not all and an exemption 
is cited to withhold some of that information, so a partial 
instead of a full grant.
    Mr. Kelly. If I remember correctly, in the Clinton 
Administration, it was 89 percent, is that correct?
    Mr. Moulton. That is correct. That is a combination of both 
partial and full grantings. The Obama Administration uses a 
significantly higher partial granting as a percentage of that. 
There are about 50 percent of the grants they make or requests 
they answer are partially granted rather than full granting.
    Mr. Kelly. When we talk about the information being 
answered, clear that up for me. You are saying that 50 percent 
are partially answered?
    Mr. Moulton. Right and then full granting would make up the 
remaining 43 percent. That combines to be a 95 percent average 
over the three years.
    Mr. Kelly. Under the Bush Administration, it was 93 
percent?
    Mr. Moulton. It was 93 percent combined.
    Mr. Kelly. You are not running for office. You are allowed 
to make mistakes when you are talking to us. We are not going 
to film that and play it back later on.
    So the Clinton Administration was 89 percent, the Bush 
Administration was 93 percent and now, under the Obama 
Administration, it is 95 percent. We have seen a marginal 
increase of about 2 percent. I know in 2008, you had some ideas 
that you submitted to President-elect Obama. Has a lot of it 
been taken in and placed into effect?
    Mr. Moulton. The recommendations we made during the 
transition had some impact. As Ms. Pustay testified, there have 
been a number of agencies that have been using technology more 
aggressively in opening up their online forms for requesting 
information. They call them portals.
    The problem really is lack of consistency. Not all the 
agencies are creating the same types of capacity online and 
some of them aren't. We think the FOIA portal that EPA is 
developing really offers a level of consistency across 
government that is greatly needed.
    Mr. Kelly. This portal they are opening at the DOJ, is it 
going to be similar to the EPA's? It sounds to me like the EPA 
has really done a good job with this portal as they come 
forward. I think you were talking about more of a partnership 
or a sharing. What do you see coming with that? Is it looking 
like it is going to merge? Are they going to have something 
very similar and as easy?
    Mr. Moulton. Certainly it is hard to say what will come 
about. I would say the features we know are being developed for 
the EPA FOIA portal far outstrip other portals and other 
efforts that we have seen from other agencies. It really is 
trying to put all of the modern advances and improvements that 
have been developed for FOIA in one place.
    The FOIA portal that Ms. Pustay was talking about really 
was a portal to allow you to request information online, but I 
don't believe it has the same level of ability, it does have 
tracking but then to post the information to allow electronic 
communication.
    Mr. Kelly. Mr. Moulton, thank you.
    I am going to now yield to Mr. Connolly.
    Mr. Connolly?
    Mr. Connolly. Thank you, Mr. Chairman.
    Just clarify in response to the Chairman's last question, 
you are referring to the DOJ portal versus the EPA portal?
    Mr. Moulton. Correct. The DOJ portal is right now mostly 
just request information online. The EPA portal is going to be 
much more robust.
    Mr. Connolly. Right. So, Mr. Chairman, I think you were on 
to something there that would suggest the EPA portal really 
still could be a model even for DOJ.
    Mr. Moulton. Absolutely. Yes.
    Mr. Connolly. In response to one of the Chairman's 
questions, correct me if I am wrong, the statistic was 
something like 93 percent in the Bush Administration and 95 
percent in the Obama Administration?
    Mr. Moulton. That is the average rate of disclosure, yes.
    Mr. Connolly. But what has to be taken into account in 
response to the Chairman's query is the difference in volume? 
Ninety-three percent of half a million is one thing; 95 percent 
of 1 million is quite something else again. Wouldn't we have to 
take into account the volume difference too, not just that 
percentage? It is more than a marginal increase if you take 
into account volume?
    Mr. Moulton. Compared to the last years of the Bush 
Administration, the volume is significantly higher. The Bush 
Administration did handle, in the beginning years when they 
took over from the Clinton Administration, a higher volume they 
dealt with for several years and requests steadily came down.
    Mr. Connolly. I am just saying the percentage may be a 
little misleading depending on the volume we are talking about. 
That is all.
    I want to ask you three questions and I want to try to get 
them in 3 minutes and 29 seconds.
    Uniform criteria, I think that is a good point you were 
making. We have 70 something agencies or 100 different agencies 
and they all have different criteria, sometimes they may have 
to given the nature of the specialized mission, but we ought to 
have some sort of universal criteria so we are all operating 
from the same playbook.
    Are we making some headway in that regard, do you think? Is 
Ms. Nisbet's ombudsman role, her agency's ombudsman role, 
helping us in that respect?
    Mr. Moulton. I think we are making progress. We have seen a 
lot of agencies invest in technology, improve their processing, 
improve their proactive disclosure. It is partly comfort level, 
comfort with technology, comfort with FOIA, that leads some of 
the agencies to advance further and other agencies sometimes it 
is also a resource question of having the resources to make 
those investments and improvements.
    Mr. Connolly. Again, we were talking about partial 
responses. That can be, depending on one's point of view, a 
good thing or a bad thing, a good thing in that at least you 
are trying to be responsive but you can't be 100 percent 
responsive for the exemptions or privacy, whatever it may be.
    On the other hand, partial may be no, you are not being 
responsive. You actually are kind of covering up and impeding 
transparency. What is your take on this increase in partial 
responsiveness by this Administration?
    Mr. Moulton. It is difficult to decide exactly what is 
going on just based on the statistics. The increased use of 
partial disclosure as part of the response from government has 
been growing for many years since about the year 2000, growing 
steadily, more partial disclosures, fewer percentage-wise full 
disclosures.
    This could be a change in government information. It may be 
that government information is becoming more commingled with 
privacy information or national security information, so 
partial redactions are a necessity. It could also be a change 
in requests, that people are requesting larger amounts of 
information and that some of it is something that has to be 
withheld, or it could be, as you say, a bad thing. It could be 
a change in the attitude and the implementation by the agency.
    From the statistics, it is impossible to tell. It would 
really require an audit of requests, a random audit to see what 
was requested, what was responsive and what was given to figure 
out exactly what is going on here and driving this.
    Mr. Connolly. That is a good point. For example, maybe 
there was a 1,000 percent increase in the Homeland Security 
requests. Of course that is going to be a partial response if 
you are lucky.
    My final question quickly is do you see a pattern of more 
or less arbitrary barriers, obstruction, needless delays in the 
last few years or are we improving in that regard?
    Mr. Moulton. You mean in processing FOIA?
    Mr. Connolly. Yes.
    Mr. Moulton. I think again the answer is that the record is 
mixed. I think some agencies have made a lot of improvements in 
removing preexisting barriers. I think that is something to 
also stress that some of these barriers have been embedded in 
the process for years predating this Administration or the 
previous Administration.
    Mr. Connolly. It is a culture.
    Mr. Moulton. A culture of if it can be withheld, then it is 
better to play it safe than sorry. That is something that is 
very hard to overcome. There is a lot of training going on, a 
lot of investment at various agencies going on, and I think 
some agencies have made greater strides than others. We have 
seen some agencies who have kept a more business as usual 
attitude towards processing FOIA requests and having the same 
types of responses. Even when they can disclosure more 
information, they choose not to.
    Mr. Connolly. Thank you, Mr. Chairman.
    Mr. Kelly. Thank you, Mr. Connolly.
    I would say whenever we talk about all this information 
that is out there, people are a lot more comfortable now. They 
are becoming more comfortable with technology, getting on and 
doing a lot of things maybe they wouldn't have done in previous 
Administrations, but also the world has changed dramatically 
after 9/11.
    When I think what we put out there, I don't know another 
country in the world that allows more people to look at what it 
is doing. I would say our model is probably the most perfect 
model out there but it also does allow for an openness no place 
else in the world does allow and I do think we have to be very 
careful with it.
    I would agree with Mr. Connolly, I think the world changing 
so quickly, the amount of information that is out there, we do 
have to be very careful with it. The President's opening 
remarks, again I go back to, sometimes we have to be careful. 
We open a Pandora's Box. We establish a standard that is may be 
hard to live up to in the real world. As we go forward, I think 
the public does expect, and may be more suspect, of things than 
they were before. We have a lot more people asking a lot more 
questions at a lot of different levels. While some people think 
that is very healthy, I do think it is healthy, but again, 
there is a lot of responsibility with how you handle that 
material.
    I really do appreciate you being here today. All the panel 
members, thank you for what you are doing in service to our 
country.
    With that, the meeting is adjourned. Thank you.
    [Whereupon, at 4:30 p.m., the subcommittee was adjourned.]



                                 
