    [Senate Hearing 112-296]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 112-296

           THE FREEDOM OF INFORMATION ACT: ENSURING TRANSPARENCY AND
                       ACCOUNTABILITY IN THE DIGITAL AGE

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY

                              UNITED STATES SENATE

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 15, 2011

                                   __________

                              Serial No. J-112-10

                                   __________

             Printed for the use of the Committee on the Judiciary

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    20402-0001

                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    CHUCK SCHUMER, New York              JON KYL, Arizona
    DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
    CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
    RICHARD BLUMENTHAL, Connecticut
                Bruce A. Cohen, Chief Counsel and Staff Director
            Kolan Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     2
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................    95

                                   WITNESSES

    Cohen, Sarah, Knight Professor of the Practice of Journalism and
      Public Policy, Sanford School of Public Policy, Duke
      University, Durham, North Carolina, on behalf of the Sunshine
      in Government Initiative.......................................    22
    Fitton, Thomas, President, Judicial Watch, Washington, DC........    24
    Nisbet, Miriam, Director, Office of Government Information
      Services, National Archives and Records Administration, College
      Park, Maryland.................................................     7
    Podesta, John D., President and Chief Executive, Center for
      American Progress Action Fund, Washington, DC..................    20
    Pustay, Melanie, Director, Office of Information Policy, U.S.
      Department of Justice, Washington, DC..........................     5

                             QUESTIONS AND ANSWERS

    Responses of Sarah Cohen to questions submitted by Senator
      Klobuchar......................................................    35
    Responses of Thomas Fitton to questions submitted by Senator
      Klobuchar......................................................    36
    Responses of Miriam Nisbet to questions submitted by Senators
      Grassley and Leahy.............................................    38
    Responses of John D. Podesta to questions submitted by Senator
      Klobuchar......................................................    48
    Responses of Melanie Pustay to questions submitted by Senators
      Grassley and Leahy.............................................    51

                           SUBMISSIONS FOR THE RECORD

    Adams, Christian, Attorney, Voting Section, Civil Rights
      Division, Department of Justice, Washington, DC, statement and
      attachment.....................................................    63
    Associated Press, Washington, DC, article........................    74
    Cohen, Sarah, Knight Professor of the Practice of Journalism and
      Public Policy, Sanford School of Public Policy, Duke
      University, Durham, North Carolina, on behalf of the Sunshine
      in Government Initiative, statement............................    75
    Fitton, Thomas, President, Judicial Watch, Washington, DC,
      statement......................................................    86
    Galovich, Al, Co-Director, Acting, Office of Information Programs
      and Services for the Department of Justice, letter and
      attachments....................................................    91
    National Security Archive, 2011 Knight Open Government Survey,
      report.........................................................    97
    Nisbet, Miriam, Director, Office of Government Information
      Services, National Archives and Records Administration, College
      Park, Maryland, statement......................................   120
    O'Brien, Jack, Vice President, Ancient Order of Hibernians in
      America, Upper Marlboro, Maryland, April 12, 2011, letter......   126
    Podesta, John D., President and Chief Executive, Center for
      American Progress Action Fund, Washington, DC, statement.......   127
    Pustay, Melanie, Director, Office of Information Policy, U.S.
      Department of Justice, Washington, DC, statement and court
      cases..........................................................   133
    Washington Post, Washington, DC:
        March 14, 2011, Associated Press, article....................   154
        March 13, 2011, Associated Press, article....................   156
        March 14, 2011, Ed O'Keefe, article..........................   158

           THE FREEDOM OF INFORMATION ACT: ENSURING TRANSPARENCY AND
                       ACCOUNTABILITY IN THE DIGITAL AGE

                                  ----------

                            TUESDAY, MARCH 15, 2011

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:16 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Whitehouse, Franken, Grassley, and
    Cornyn.

    OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Chairman Leahy. Good morning. Normally we would have
    started at 10, but Senator Grassley and I were both at the
    Supreme Court for the Judicial Conference, and so we appreciate
    everybody's willingness to start at 10:15.
        This is an important hearing on FOIA, or the Freedom of
    Information Act. When Congress enacted FOIA more than 40 years
    ago, this watershed law ushered in a new and unprecedented era
    of transparency in Government. Four decades later, FOIA
    continues to give citizens access to the inner workings of
    their Government and to guarantee the right to know for all
    Americans.
        The right to know is a cornerstone of our democracy.
    Without it, citizens are kept in the dark about key policy
    decisions that directly affect their lives. In the digital age,
    FOIA remains an indispensable tool in protecting the people's
    right to know.
        As Americans from every corner of our Nation commemorate
    Sunshine Week, they have many good reasons to cheer. I am
    pleased that one of President Obama's first official acts when
    he took office was to issue a historic new directive to
    strengthen FOIA. Just yesterday, the Department of Justice
    launched the new FOIA.gov website. It compiles all of the
    Department's FOIA data in one online location.
        The Congress has made good progress in strengthening FOIA.
    Last year, the Senate unanimously passed the Faster FOIA Act.
    That is a bill that Senator Cornyn of Texas and I introduced to
    establish a bipartisan commission to study FOIA and to make
    recommendations to Congress on ways to further improve FOIA. We
    will reintroduce this bill later this week.
        The reason Senator Cornyn and I have joined together for
    years now on strengthening FOIA, we go on the assumption that
    no matter whether you have a Democratic or Republican
    administration, whoever is there is going to be glad to talk
    about the things that go right, not quite so eager to talk
    about things that might not have gone right. And it helps
    everybody, no matter whether it is a Republican or Democratic
    administration, to know that the people being represented have
    a chance to find out what is happening.
        There is reason to cheer the recent unanimous decision by
    the Supreme Court in Federal Communications Commission v. AT&T,
    concluding that corporations do not have a right of personal
    privacy under the Freedom of Information Act. That, again,
    makes our Government more open and accountable to the American
    people. The Government is still not as open and accessible as I
    would like to see it, and many of us would.
        Implementation of FOIA continues to be hampered by the
    increasing use of exemptions--especially under section (b)(3)
    of FOIA.
        Last year, Senators Grassley, Cornyn, and I worked together
    on a bipartisan basis to repeal an overly broad FOIA exemption
    in the historic Wall Street reform bill.
        It is also essential that the American people have a FOIA
    law that is not only strengthened by reform, but properly
    enforced. A report released yesterday by the National Security
    Archive found that while there has been some progress in
    implementing the President's FOIA reforms, only about half of
    the Federal agencies surveyed have taken steps to update their
    FOIA guidance and assess their FOIA resources. And FOIA delays
    continue to be a problem; six-year-old delays are far too much.
        I am pleased that we have representatives from the
    Department of Justice and the Office of Government Information
    Services, and I will continue to work with Senator Cornyn,
    Senator Grassley, and others because this is something we
    should all join on. It is important for the country.
        Senator Grassley.

    STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
                                OF IOWA

        Senator Grassley. This is a very important hearing, and
    thank you for it and particularly coming during this week that
    is called ``Sunshine Week'' observed annually, seemingly
    coinciding with James Madison's birthday, Founding Father of
    our checks-and-balances system of Government. Open government
    and transparency are more than just pleasant-sounding words.
    They are essential to maintain our democratic form of
    Government.
        FOIA is based on the belief that citizens have a right to
    know what their Government is doing and that the burden is on
    the Government to prove otherwise. It requires that our
    Government operate on the presumption of disclosure. So it is
    important to talk about the Freedom of Information Act and the
    need for American citizens to be able to easily obtain
    information from their Government.
        Transparency is not negotiable, even in a Republican
    administration, as far as I am concerned. Although it is
    Sunshine Week, I am disheartened, continuing the practices of
    previous Presidents, Republican or Democrat, that we do not
    have the openness that we should. And contrary to President
    Obama's hopeful pronouncements when he took office more than 2
    years ago, the sun still is not shining on the executive
    branch.
        Given my experiences in trying to pry information out of
    the executive branch and based on investigations by the media,
    I am disappointed that President Obama's statements about
    transparency are not being put into practice. Federal agencies
    under the control of his political appointees have been more
    aggressive than ever in withholding information. There is a
    real disconnect between the President's words and the actions
    of his political appointees.
        On his first full day in office, President Obama issued a
    memorandum on FOIA to heads of all executive agencies: ``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 and abstract fears.''
        But further quoting his instruction to executive agencies,
    ``Adopt a presumption in favor of disclosure''--and that is
    very important to remember those words. ``Adopt a presumption
    in favor of disclosure in order to renew their commitment to
    the principles embodied in FOIA and to usher in a new era of
    open government.''
        Unfortunately, based upon his administration's actions, it
    appears that in the eyes of the President's political
    appointees, his hopeful words about open government and
    transparency are mere words. It is not just a matter of
    disappointment in the administration's performance in complying
    with requests for information, and it is not even about
    bureaucratic business as usual. It is more, and far worse.
        Perhaps the most dramatic and troubling departure from the
    President's vow to usher in a new era of open government are
    revealed in e-mails from the Department of Homeland Security
    obtained by the Associated Press in July last year. A report by
    Ted Bridis of AP uncovered that for at least a year Homeland
    Security was diverting requests for records to senior political
    advisers who delayed the release of records they considered
    politically sensitive. The review often delayed the release of
    information for weeks beyond the usual wait.
        Specifically, in July of 2009, the Department of Homeland
    Security introduced a directive requiring a wide range of
    information to be vetted by political appointees, no matter who
    requested it. Career employees were ordered to provide
    Secretary 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 the
    organizations they worked for. If a Member of Congress sought
    such documents, employees were told to specify Democrat or
    Republican.
        The Homeland Security directive laid out an expansive view
    of the sort of documents that required political vetting.
    Anything that touched on controversial or sensitive subjects
    that could attract media attention or that dealt with meetings
    involving prominent business and elected leaders had go to
    political appointees.
        I was very disturbed by the Associated Press report, which
    came out July 21st last year. Accordingly, in August,
    Representative Issa and I wrote the Inspectors General of 29
    agencies and asked them to review whether their agencies were
    taking steps to limit responses to Freedom of Information Act
    requests from lawmakers, journalists, activist groups, and
    watchdog organizations. The deadline for responding to my
    letter passed about 5 months ago. To date, only 11 of the 29
    agencies have responded.
        The lack of a response from so many agencies sends a
    disturbing message. The leadership of the Federal agencies do
    not seem to consider the political screening of requests under
    the Freedom of Information Act to be a matter worthy of their
    attention.
        My concern about the lack of responses to my letter was
    well founded. It now appears that the Department of Justice may
    have also politicized compliance with the Freedom of
    Information Act. On February 10, 2011, blog--I have got three
    more pages, and I am laying out a case here. If you do not want
    me to, I will put it in the record.
        Chairman Leahy. No, go ahead and finish.
        Senator Grassley. On February 10, 2011, blog-posting
    Christian Adams, a former attorney in the Voting Section of the
    Civil Rights Division at the Justice Department discussed this
    disturbing development in detail. Specifically, Adams' review
    of the Voting Section's logs for Freedom of Information Act
    requests revealed that requests from liberals or politically
    connected civil rights groups are often given the same-day or
    expedited turnaround. By contrast, requests from conservatives
    or Republicans faced long delays, if they are fulfilled at all.
    Adams reported that as of August 2010 the logs show a pattern
    of political screening and politicizing compliance. Overall,
    the data in the logs obtained by Adams reveal priorities of the
    Civil Rights Division: transparency for insiders and friends,
    stonewalling for critics, political appointees, and
    Republicans.
        So there is a disturbing contradiction between President
    Obama's words and the actions of his political appointees. When
    the agencies I am reviewing get defensive and refuse to respond
    to my requests, it makes me wonder what they are trying to
    hide.
        Throughout my career I have actively conducted oversight of
    the executive branch regardless of who controls Congress or who
    controls the White House. It is our constitutional duty. It is
    about basic good government, and accountability, not party
    politics or ideology.
        Open government is not a Republican or Democrat issue. It
    has to be--and our Chairman has highlighted that--a bipartisan
    approach. Our differences on policy issues and the workings of
    Government must be debated before our citizens in the open. I
    know that you know this, Mr. Chairman. I know how hard you
    worked with Senator Cornyn on the Open Government Act of 2007,
    which amended FOIA. Mr. Chairman, I hope that you are as
    disturbed as I am by these reports and by the Attorney
    General's approach to them. I hope that you will work with me
    to investigate these allegations.
        I also hope that more in the media will investigate these
    disturbing reports. I am disappointed that there has not been
    more media coverage of the Associated Press uncovering the
    political screening of the Freedom of Information Act requests
    by the Department of Homeland Security and Christian Adams'
    article about similar conduct at DOJ.
        I am also disappointed that there has not been more
    coverage of Representative Issa's efforts to investigate
    Homeland Security's political screening of information
    requests. This conduct is not just political decisionmaking; it
    is the politically motivated withholding of information about
    the very conduct of our Government from our citizens. In
    particular, it's the withholding of information about the Obama
    administration's controversial policies and about its mistakes.
        We cannot ignore or minimize this type of conduct. It is
    our job in Congress to help ensure that agencies are more
    transparent and responsive to the Government we represent. I
    view this hearing as a chance to have the facts come out and as
    a chance to examine some of the disturbing practices which have
    been reported on. In other words, as I sum it up, except for
    national security and intelligence information--and that is
    about 1 percent of the total Federal Government's business--99
    percent of what the Government does is the public's business
    and it ought to be public.
        Thank you very much.
        Chairman Leahy. Well, I agree with the Senator. When
    requests are made, we ought to get answers. I think of the
    thousands of requests made during the Bush administration that
    have yet to be answered, never were answered there.
        Senator Grassley. For this Senator, too.
        Chairman Leahy. Yes, and the hundreds of thousands of e-
    mails that they still say they cannot find from that time. I
    would not want to suggest that the blame just falls on one
    side. We have had those requests during the--we had the Lyme
    disease one--still trying to find requests during the last
    administration. But what I want to know is how we make it work
    best.
        Melanie Pustay is the Director of the Office of Information
    Policy at the Department of Justice. She has the statutory
    responsibility for directing agency compliance with the Freedom
    of Information Act. Before becoming the office's Director, she
    served for 8 years as the Deputy Director. She has extensive
    experience in FOIA litigation, received the Attorney General's
    Distinguished Service Award for her role in providing legal
    advice, guidance, and assistance on records disclosure issues.
    She earned her law degree from American University Washington
    College of Law, and she was on the Law Review there.
        We put your whole statement in the record, of course, but
    please in the time available go ahead and tell us whatever you
    would like.

     STATEMENT OF MELANIE PUSTAY, DIRECTOR, OFFICE OF INFORMATION
          POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

        Ms. Pustay. Thank you. Good morning, Chairman Leahy and
    Ranking Member Grassley and members of the Committee. I am
    pleased to be here this morning to address the subject of the
    Freedom of Information Act and the efforts of the Department of
    Justice to ensure that President Obama's memorandum on the
    FOIA, as well as Attorney General Holder's FOIA Guidelines, are
    indeed fully implemented across the Government. As the lead
    Federal agency responsible for proper implementation of the
    FOIA, we at the Department of Justice are strongly committed to
    encouraging compliance with the Act by all agencies and to
    promoting open government.
        As you know, the Attorney General issued his new FOIA
    Guidelines during Sunshine Week 2 years ago. The Attorney
    General called on agency Chief FOIA Officers to review their
    agencies' FOIA administration each year and then to report to
    the Department of Justice on the steps they have taken to
    achieve improved transparency. These reports show that agencies
    have made real progress in applying the presumption of
    openness, improving the efficiency of their FOIA processes,
    reducing their backlogs, expanding their use of technology, and
    making more information available proactively. Now, while there
    is always work that remains to be done, for the second year in
    a row agencies have shown that they are improving FOIA
    compliance and increasing transparency.
        For example, across the Government there was an overall
    reduction in the FOIA backlog for the second year in a row.
    There was also an increase in the number of requests where
    records were released in full. And I am particularly proud to
    report that the Department of Justice for the second straight
    year in a row increased the numbers of responses where records
    were released in full and were released in part.
        My office, the Office of Information Policy, provided
    extensive governmentwide training on the new guidelines to
    agencies, and we have issued written guidelines to assist
    agencies. We have also reached out to the public and the
    requester community. We will be holding our first ever FOIA
    requester agency town hall meeting, which will bring together
    FOIA personnel and frequent FOIA requesters.
        Yesterday, the first day of Sunshine Week, the Attorney
    General approved new updated FOIA regulations for the
    Department. These regulations will serve as a model for all
    agencies to use in similarly updating their own FOIA
    regulations. And then most significantly, yesterday we launched
    our newest transparency initiative, which is our website called
    FOIA.gov.
        Combining the Department's leadership and policy roles in
    the FOIA, the FOIA.gov website shines a light on the operation
    of the FOIA itself. The website has two distinct elements.
    First, it serves as a visual report card of agency compliance
    with the FOIA. All the detailed statistics that are contained
    in agency Annual FOIA Reports are displayed graphically, and
    the website will be able to be searched and sorted and
    comparisons made between agencies and over time. We will also
    be reporting key measurements of agency compliance, and it is
    our hope that FOIA.gov will help create an incentive for
    agencies to improve their FOIA performance. The site will also
    provide a link to each agency's FOIA website which will allow
    the public to readily locate records that are already posted on
    agency websites.
        Now, in addition, the FOIA.gov website will serve a second
    and equally important function. It will be a place where the
    public can be educated about how the FOIA process works, where
    to make requests, and what to expect through the FOIA process.
    Explanatory videos are embedded into the site. There is a
    section addressing frequently asked questions. There is a
    glossary of FOIA terms. A wealth of contact information is
    given for each agency. Significant FOIA releases are also
    posted on the site to give the public examples of the types of
    records that are made available through the law.
        The Department of Justice envisions that this website will
    be a one-stop shop both for reviewing agency compliance with
    the FOIA and for learning about how the FOIA process works. We
    plan to continually add features and updates to the site, and
    we welcome comments from both the public and from agencies.
        Now, looking ahead, OIP will be assessing where agencies
    stand in their ongoing efforts to improve compliance with the
    FOIA. We will be providing additional training to agencies. We
    will continue our outreach to requesters.
        As I stated earlier, the Department is committed to
    achieving the new era of open government that the President
    envisions. We have made progress in the past 2 years toward
    that goal, but OIP will continue to work diligently to help
    agencies achieve even greater transparency in the years ahead.
        In closing, the Department of Justice looks forward to
    working together with the Committee on all matters pertaining
    to the FOIA, and I would be pleased to answer any questions
    that you or any other member of the Committee might have. Thank
    you.
        [The prepared statement of Ms. Pustay appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        We will also hear, before we go to questions, from Director
    Miriam Nisbet, and we have been joined by Senator Cornyn. Did
    you notice?
        Ms. Nisbet is the founding Director of the Office of
    Government Information Services at the National Archives and
    Records Administration. Before that she served as the Director
    of the Information Society Division for UNESCO. Her extensive
    information policy experience was previous work as legislative
    counsel for the American Library Association and the Deputy
    Director of the Office of Information Policy for DOJ. She
    earned her bachelor's degree and law degree from the University
    of North Carolina.
        Welcome back.

      STATEMENT OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT
          INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS
                 ADMINISTRATION, COLLEGE PARK, MARYLAND

        Ms. Nisbet. Thank you, Mr. Chairman. Good morning to you,
    Senator Grassley, and members of the committee. I really
    appreciate the opportunity to be here with you during Sunshine
    Week to talk about my office, which is an important part of the
    freedom of information and open government initiatives of the
    Federal Government.
        As you know, the Office of Government Information Services,
    or OGIS, as we refer to it, has been hard at work carrying out
    its statutory mission since opening in September 2009. While we
    have worked to resolve disputes under the Freedom of
    Information Act and to review agency FOIA policy, procedures,
    and compliance, we have realized that much of our work falls
    under the designation that Congress gave us as the ``FOIA
    ombudsman.'' As an ombudsman, OGIS acts as a confidential and
    informal information resource, communications channel, and
    complaint handler. OGIS supports and advocates for the FOIA
    process and does not champion requesters over agencies or vice
    versa. We encourage a more collaborative, accessible FOIA
    process for everyone.
        We are off to quite a start. In our first 18 months, we
    heard from requesters from 43 States, the District of Columbia,
    Puerto Rico, and 12 foreign countries. We answered questions,
    provided information, listened to complaints, and tried to help
    in any way we could. For the more substantive disputes, we
    facilitated discussions between the parties, both over the
    phone and in person, and worked to help them find mutually
    acceptable solutions.
        The statutory term ``mediation services,'' which you all
    are aware of as authors of that language, includes the
    following: formal mediation, facilitation, and ombuds services.
    OGIS continues to offer formal mediation as an option for
    resolving disputes, but so far we have not yet had a case in
    which the parties agreed to participate in that process.
    However, we have found that the less formal method of
    facilitation by OGIS staff members provides a very similar
    process, and parties are more willing to engage with OGIS and
    with each other without the perceived formality of mediation.
        Since September 2009, OGIS has closed 541 cases, 124 of
    them true disputes between FOIA requesters and agencies, such
    as disputes over fees charged and FOIA exemptions as applied.
    As a facilitator for the FOIA process to work as it is
    intended, we were not calling balls or strikes, but letting the
    parties try to work matters out with our assistance in an
    effort to avoid litigation. In three-quarters of the disputes
    we handled, we believe that the parties walked away satisfied
    and that OGIS involvement helped to resolve their disputes.
        A realization we quickly faced is that defining success is
    a challenge. The final result of our process is not both
    parties getting exactly what they want--sometimes not even
    close--but if we are able to help them in some way, by
    providing more information or by helping them understand the
    other party's interests, we believe that we have provided a
    valuable service. When OGIS first set out, we spoke of changing
    a culture or mindset from one of reacting to a dispute in an
    adversarial setting to one of actively managing conflict in a
    neutral setting.
        Because we have had so many requests for mediation
    services, we have also been challenged in setting up a
    comprehensive review strategy for that prong of our statutory
    mission.
        For now, the review plan includes providing agencies with
    FOIA best practices, using existing data to address topics such
    as backlogs or referrals and consultations, and to offer what
    we call collaborative reviews alongside willing agencies.
        We are also offering training for FOIA professionals in
    dispute resolution skills to help them to prevent or resolve
    disputes at the earliest possible time.
        OGIS has a unique perspective on the way FOIA works. As an
    entity that works side by side with agency FOIA professionals
    to improve the process from within and that also works closely
    with requesters on the outside to address shortcomings, we have
    seen the importance of building relationships--and trust--among
    the members of the FOIA community. It is an exciting process,
    and while we have just gotten started and see it as a long-term
    effort, we are pleased to see so many positive results in the
    short term and to see that our process works.
        Thank you. Please let me know if you have questions or if
    we can help your constituents.
        [The prepared statement of Ms. Nisbet appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        Let me ask this: We talked about it, but I have worked for
    years on a bipartisan basis to reinvigorate FOIA, and I am
    pleased by the support we have gotten for that. I was also
    pleased when in March 2009, when Attorney General Holder issued
    new FOIA guidelines, it, I believe rightfully, restored the
    presumption of disclosure. But the report released yesterday by
    the National Security Archives found only half of the Federal
    agencies surveyed have taken concrete steps to update their
    FOIA policies and procedures in light of this guidance. They
    are doing what they did in past administrations.
        So, Ms. Pustay, what is the Department doing to help keep
    the President's promise of a more transparent Government?
        Ms. Pustay. To respond to the National Security Archive
    report issue first, the conclusions that they reached in that
    report are incomplete because the agencies were asked--all 97
    agencies subject to the FOIA were specifically asked by the
    Department of Justice to address the issues of training
    guidance and staffing, which were the two factors that were
    looked at by the National Security Archive report. And what
    happened with the Archive report is they took the absence of a
    response or the absence of documents to mean that the agency
    had done nothing in those factors. But if you look at their
    Chief FOIA Officer reports, they have addressed those very
    factors. And so, for example, an agency might not have created
    its own guidance for implementing Attorney General Holder's
    guidelines, but what they have done is used the Department of
    Justice's guidance that is already posted and has been posted
    since the guidelines first came out.
        Chairman Leahy. Well, let us go to some of the agencies--in
    fact, 12 of them had pending FOIA requests that go way back.
    They were not answered during the Bush administration, still
    are not being answered. They go back 6 years. What do you do
    about that? I mean, that seems somewhat excessive to me.
        Ms. Pustay. Right. Of course----
        Chairman Leahy. Especially if you had to make decisions in
    your own life based on those answers.
        Ms. Pustay. The age of the oldest request across the
    Government definitely continues to be too old. There is no
    doubt about that. And that has been a specific area that we
    have focused on. The Department of Justice first required
    agencies to report on their ten oldest requests as a way of
    giving more accountability and transparency to the issue of the
    age. So it is specifically something that we are asking
    agencies to address when they look at their backlogs. We ask
    them to measure it both in terms of numbers of requests and age
    of requests because we see them as two distinct aspects of
    backlog reduction.
        I am happy to say, though, that for the second straight
    year in a row, agencies have reduced their backlogs. So since
    implementation of our new guidelines, we are seeing progress.
    Backlogs are going down. The age of the oldest is improving. So
    we are on the right track.
        Chairman Leahy. Well, let me ask on that, Ms. Nisbet, we
    have the Office of Government Information Services, OGIS,
    trying to provide cost-effective alternatives for resolving
    FOIA disputes because, as you know, sometimes a dispute can
    just drag on and the cost gets to much and so nothing ever
    happens. Can OGIS actually help reduce the current backlog that
    Ms. Pustay has talked about?
        Ms. Nisbet. Senator Leahy, we believe that we can. I am not
    sure that we are able today to show in measurements exactly how
    we are doing that. But I can tell you that the cases that come
    to us--and we have now had, as of last week, just shy of 600.
    About one in five do continue to be problems with delays in
    response. But what we are finding that we can do with that,
    with the help of the agencies and working with the requesters,
    is sometimes to narrow the focus of the request, help with the
    search, resolve issues pretty quickly in terms of fees, and
    move things along that way.
        Chairman Leahy. I will go back to Ms. Pustay. Last week,
    the Supreme Court held in Milner v. Navy that the Government
    may not rely upon FOIA Exemption 2 to withhold Government
    records that are unrelated to personnel or human resources
    matters. They rejected the concept of the so-called high two,
    the exemption in FOIA established in the D.C. Circuit in the
    Crooker case.
        Ms. Pustay. The Crooker case.
        Chairman Leahy. It was 25 or 30 years ago.
        Ms. Pustay. Right. 1981.
        Chairman Leahy. To some of us, it seems like only
    yesterday.
        [Laughter.]
        Chairman Leahy. Some have suggested that Congress should
    enact legislation to allow the Government to continue to
    withhold high two information response through Milner. So what
    is the Department's position on that? And are you going to
    propose legislation to Congress?
        Ms. Pustay. We are considering the impact of the Milner
    decision. As you can imagine, it is just brand new, and so I am
    not prepared yet to say what we are going to propose. But we
    are obviously carefully looking at the impact of the decision.
        Chairman Leahy. Well, as you are looking at it, please keep
    in touch with myself, Senator Cornyn, and Senator Grassley.
        Ms. Pustay. I appreciate that.
        Chairman Leahy. I yield.
        Senator Grassley. Thank you.
        Going back to some statements I made in my opening
    comments, it would seem obvious that the political vetting
    policy at the Department of Homeland Security that was
    uncovered by AP violates both the President's and the Attorney
    General's orders set forth in their memos. A simple question,
    first to you, Ms. Pustay, and then to Ms. Nisbet. Would you
    agree?
        Ms. Pustay. I am sorry. I did not----
        Senator Grassley. OK. The question is: Would you agree
    whether what the Associated Press uncovered about the
    Department of Homeland Security and their political vetting
    process violates both the President's and the Attorney
    General's orders set forth in memos from 2009?
        Ms. Pustay. Certainly, if the statements in the article are
    true, of course, it would be very serious and would be
    something that we would have serious concerns with, of course.
        I can tell you that the policy of the Department of Justice
    and certainly what we share with agencies and in our training
    with agencies, our one-on-one guidance, all our presentations,
    of course, is that the identity of a requester has nothing to
    do with the response given to the request, that the process is
    one that is to be handled by agencies without any regard for
    the identity of the requester in the normal course of events.
    Typically, FOIA professionals within an agency are career
    employees who handle the requests in a routine matter that does
    not involve or implicate any of the things that were mentioned
    in that article.
        Senator Grassley. Can you say whether you agree or
    disagree, Ms. Nisbet?
        Ms. Nisbet. Well, I think the issues raised are of great
    concern, and I do note that Congressman Issa is continuing to
    look into this matter, as you referred to, to find out more
    about it and to see what steps might need to be taken.
        Senator Grassley. OK. Thank you.
        A March 19, 2009, memorandum by General Holder repeated
    President Obama's hopeful pronouncements about transparency and
    stated, ``Each agency must be fully accountable for the
    administration of the Freedom of Information Act.''
        So, Ms. Pustay, how are the political appointees at the
    Department of Homeland Security who authored and carried out
    the political vetting policy being held accountable for their
    actions?
        Ms. Pustay. I am really not--I do not think I am in a
    position right now to talk about the Department of Homeland
    Security and the allegations from that article. What I can say
    is that part of what the Department is doing to make real the
    words of accountability is connected directly with our website,
    our FOIA.gov website, where all the detailed data about how
    FOIA requests are handled is available now for all the public
    to see and to be able to compare and contrast information.
        Senator Grassley. What sort of an environment would you
    need to talk about it? Or are you saying you cannot talk about
    it at all?
        Ms. Pustay. I am not in a position to talk about the
    Department of Homeland Security's process.
        Senator Grassley. OK. Is your office or any other unit in
    the Justice Department or any other unit in the Government
    investigating the political vetting policy at Homeland Security
    which was uncovered by Associated Press? That is simple. Either
    you are investigated it or you are not investigating it.
        Ms. Pustay. I am not aware of us investigating it.
        Senator Grassley. OK. So then obviously the next follow-up
    question was who was conducting the investigation, but you do
    not think that there is any investigation.
        The third question. On March 1, 2011, Representative Frank
    Wolf questioned General Holder about Christian Adams' article.
    The Attorney General testified that he had looked into the
    issues and assured Congressman Wolf that there is no
    ideological component to how the Justice Department answers
    FOIA requests. So, would you describe for us in as much detail
    as possible the Justice Department's investigation into the
    allegations made in Christian Adams' article?
        Ms. Pustay. On that topic I can tell you that we are
    looking into the issue at the Department of Justice, and there
    will be a response coming to Representative Issa.
        What I also, though, can tell you, from what I know of the
    facts of those allegations, is that the article mistook
    different versions--different types of access procedures that
    the Civil Rights had, compared apples and oranges, if you will.
    The Civil Rights Division has multiple ways to access records
    separate and apart from FOIA, and so one of the causes of
    confusion or concern raised by the article writer was mixing
    those two different forms of access up.
        Again, I can tell you the policy certainly within the
    Department of Justice is that the identity of the requester has
    nothing to do with how a FOIA request is processed.
        Senator Grassley. OK. My time is up. I hope I can have a
    second round. I guess you are in charge now.
        Senator Whitehouse [presiding]. I am sure there will be no
    objection to a second round, although we do have a second panel
    as well. But I will leave that to the Chairman on his return.
        Thank you both for your testimony. I am interested in the
    extent to which the FOIA process might be facilitated by modern
    digital technology. There is sort of the early beginnings of a
    website in FOIA.gov., but as I understand it, it tracks the
    FOIA process but does not contain much substantive information
    of any kind. As somebody who in my State life was on the
    receiving end of a lot of FOIAs, we had to copy stuff and send
    it out, and then it was gone. And if somebody else asked the
    same question a week later, you had to go back, copy it all
    again and send it out again.
        Why is there not a data base that you can go and search
    through the way--why can't you Google all the old FOIA
    requests? Should we be able to? Is there a process for getting
    there? And what can we do to accelerate that process?
        Ms. Pustay. It is absolutely something that agencies, are
    working on and certainly at the Justice Department we are very
    much working on. One of the things already that is available on
    the FOIA.gov website are links to every single FOIA website of
    every agency. So the records that each agency has already put
    up on their website are all available just by clicking on the
    link. So that is existing right now on FOIA.gov.
        We are working on a search capability that will allow the
    requests--a member of the public or a requester to type in a
    search term and have the technology capabilities of FOIA.gov
    launch a search through all the FOIA websites of every agency
    and pull up all the records that would match that term. So that
    is something that is actively being worked on now, and we are
    pretty hopeful that that capability will be available soon on
    FOIA.gov.
        Senator Whitehouse. I ran pretty small offices, and I do
    not think we kept the old FOIA requests once they were sent
    out. What do the Federal agencies do----
        Ms. Pustay. Agencies absolutely--a common part of our
    guidance is to keep copies of what has been processed because,
    of course, the easiest way to process it when it comes in the
    second time is that you already have it. But more than that, we
    have had a policy for quite some--we have actually by law, once
    a request has been--once a subject matter has been requested
    three times, it is required by the FOIA itself to be posted on
    the agency's website.
        With Attorney General Holder's guidelines, we have expanded
    that and have been encouraging agencies at any time to think
    about records that might be of interest to the public, and to
    put them up on the website even before there is one request.
        We have certainly seen in the Chief FOIA Officer Reports
    that we have just gotten in this past week that lots of
    agencies are taking steps to put information up on the website
    that has been requested and are anticipating interest in
    records. So agencies are definitely right on board with this
    concept.
        Senator Whitehouse. Two questions further. Does the search
    capacity--or when it is installed, will the search capacity
    reach the FOIA request or just the substance? Because sometimes
    the value of the FOIA answer is that a knowledgeable person has
    aggregated the information that is relevant to a particular
    request, and if it is just out there and you do not really
    know--if the responsiveness in and of itself is of some
    informative value.
        Ms. Pustay. Of course.
        Senator Whitehouse. Are they just pointing things? Or is
    the original request that came in that they are responsive to
    also part of what is on the Web and what can be searched?
        Ms. Pustay. The answer is yes to both those things.
        Senator Whitehouse. OK.
        Ms. Pustay. Both types of things are being posted, both
    types of things will be retrievable with our search function
    once we get it up and running.
        Senator Whitehouse. OK. And is there a role for--I mean, a
    lot of this stuff ends up in Government archives one way or
    another. Is there a role for other agencies to participate in
    this and have the FOIA thing be a part of a larger Government
    records retrieval and retention system?
        Ms. Pustay. Well, FOIA already is obviously part of a
    larger system because every agency handles its own records, and
    every agency has a FOIA website where there are things that are
    required to be put on that website. FOIA.gov is now our new way
    to capture all of that material across the Government through
    one single website. So that is what we think is one of the real
    beauties of FOIA.gov and the educational----
        Senator Whitehouse. In my last 15 seconds, how far back are
    agencies expected to go in stuff that they have sent out in the
    past and load it onto their websites?
        Ms. Pustay. What we advise agencies to do is to put on
    their website information that they anticipate would be of
    interest to someone today. So that is a judgment call they
    make, and we have seen really good examples of agencies
    thinking proactively when events occur and they know a request
    will come in, and so they will put the information up on their
    website.
        Senator Whitehouse. My time has expired. Mr. Chairman,
    thank you very much.
        Chairman Leahy [presiding.] Thank you.
        Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        Mr. Chairman, it has been a pleasure to work with you on
    FOIA issues over the 8 years I have been in the Senate, and I
    am glad to see Ms. Nisbet here, who is the first ombudsman
    created by the Federal Government to help people who request
    records navigate the labyrinthine bureaucracy of the Federal
    Government to try to get some information.
        I know you and I both believe, Mr. Chairman, that openness
    and transparency is essential to self-government, and, frankly,
    I think we need to have a dramatic culture change here in
    Washington, D.C., about just whose records these are and to
    make sure that there are real teeth in enforcement procedures
    within the law that guarantee a reasonable request will be
    responded to in a reasonable time.
        Ms. Pustay, let me ask you, according to the report
    released Monday by the National Security Archive, 90 different
    FOIA requests, but 17 agencies were reported still working on a
    response to the request after 117 business days when the law
    provides for 20 days. Can you explain what consequences there
    are when an agency fails to respond on a timely basis to a FOIA
    request?
        Ms. Pustay. The statute provides, of course, that there is
    a 20-working-day period to respond, but then the FOIA actually
    also recognizes that there are situations where agencies will
    need additional time to respond if they have voluminous records
    to process or have to search in a field facility, that type of
    thing. And so the idea that is built into the statute is that
    requesters are notified of the time or the estimated time for
    completion and given a chance to work out an agreed-upon time
    with the agency.
        Ultimately, of course, if the requester is unhappy with the
    delay, what we would certainly encourage the requester to do is
    to contact the FOIA public liaison or contact the agency
    official who is handling the request to find out what the
    delays are all about.
        Senator Cornyn. In each case where there is a FOIA request
    made, you are saying the agency must within the 20 working days
    provided by the statute provide a response, either including
    the records that were requested or a response that there are
    voluminous records that are going to require some time to
    examine and pull out relevant records? Is that what you are
    saying?
        Ms. Pustay. Sure. The statute itself provides--there is a
    standard 20-day response period, or there is an additional 10-
    day response period if you have those circumstances. And then
    also the statute provides that if the period of time to respond
    is going to be longer than that 30 days total, there is a
    process where the agency gives an estimate to the requester and
    works with the requester on the time.
        Senator Cornyn. And if they do not do that, what recourse
    does a citizen have?
        Ms. Pustay. Ultimately, of course, a requester can go to
    court because there is constructive exhaustion built into the
    FOIA where, if the agency goes beyond the statutory time
    period, you are allowed as a requester to go to court. Nobody
    encourages that. Nobody wants to see that happen. And what we
    have instead is a real focus on having agencies work with the
    requester to explain why the delay is happening. We have
    600,000 requests across the Government, so it is an incredible
    crush of requests that agencies are facing, and oftentimes just
    explaining that to a requester is helpful.
        Senator Cornyn. Well, what I meant earlier when I said we
    need to change the culture here in Washington, I think too
    often the agencies believe that this is a nuisance to be
    avoided, and they do not treat the requester as a customer or
    recognize, acknowledge the fact that actually the Federal
    Government works for the people who are requesting the
    documents.
        But, Ms. Nisbet, let me ask you in your capacity as the
    ombudsman, what has been your experience? I notice in this
    National Security Archive report, four of the agencies denied
    even getting the FOIA request, and you know and I know that
    saying, well, you can always sue the Federal Government in
    court, that is a hollow promise in many instances because
    people simply do not have the resources to do that.
        Ms. Nisbet. And, indeed, I believe that was one of the
    strong interests of you all in setting up the Office of
    Government Information Services, is to have an alternative to
    litigation so that neither requesters nor agencies have to
    litigate over issues, particularly involving delays when the
    agency has not been able to give a response.
        What we are finding, though, is that, yes, delays, as I
    mentioned before, continue to be an issue. It is a legitimate
    reason--there are legitimate reasons for that, of course,
    because requests can be quite complex, records can be
    voluminous. Sometimes it is very difficult to even start a
    search for records in a short amount of time. But what is
    important is having some channels of communication between the
    requester and the agency. Requesters often are willing to work
    with the agency and, in fact, they should work with the agency
    on the scope of the request. They are understanding of delays
    if someone talks to them, explains to them, and works with them
    so that they know that someone is trying to provide that
    service that you are talking about, even if it is not going to
    be as quickly as the requester likes.
        Senator Cornyn. I know my time is up for this round, but
    let me just say that I think that was one of the most important
    things that we were able to do in the legislation, the Open
    Government Act, is to create an ombudsman that could help the
    requester narrow the request and to get what they want as
    opposed to overly broad requests which basically misses the
    target. So I think it is really important that we have somebody
    they can talk to, not an adversarial relationship but somebody
    who can help facilitate that and get the information in the
    hands of the requester on a timely basis.
        Thank you, Mr. Chairman.
        Chairman Leahy. Thank you.
        Did you have any other questions of this panel? Because we
    only have another half-hour.
        Senator Grassley. I have got hopefully three short
    questions.
        I already referred in my opening comments about our letter
    to the Inspectors General at 29 agencies wanting to request the
    extent to which requests from lawmakers, journalists, activist
    groups, and watchdog organizations were--the Inspector General
    was asked to determine the extent to which political appointees
    are systematically made aware of FOIA requests and their part
    in the decisionmaking process. We asked the Inspector General
    at DOJ to look into that. He passed it on to you, and then your
    response admits the Freedom of Information Act offices at the
    Justice Department make their political leadership aware of
    FOIA requests and ``seek their input'' on responding. Your memo
    does not provide any specifics on the nature of the input from
    political appointees, so these are my questions.
        What type of input do political appointees under the Obama
    administration give to career employees regarding response to
    Freedom of Information Act requests? Then I have two follow-up
    questions.
        Ms. Pustay. To prepare that response, I did a survey of all
    the components in DOJ, and fundamentally I was completely
    unsurprised by the responses that they gave me because the
    practice at DOJ now is exactly how it has been for the two
    decades that I have been working at DOJ. So there was nothing
    unusual at all.
        Essentially, components will make the management offices of
    the Department of Justice aware of requests in their capacity
    as the managers of the Department. So it is completely
    appropriate, completely something that we have seen literally
    for the decades that I have been at DOJ.
        Senator Grassley. Since the memo was put out in January
    2009, have responses to FOIA requests ever been delayed pending
    review by political appointees at the Department of Justice?
        Ms. Pustay. Not at the Department of Justice. We have, I
    think, an outstanding track record at DOJ of processing more
    requests these past 2 years than we ever have before, of
    releasing more records these past 2 years than ever before, and
    of managing our backlog over the past 2 years. So I think the
    facts speak for themselves.
        Senator Grassley. OK. Then, why or why not to this
    question. Do you believe that the involvement of political
    appointees in FOIA requests is acceptable practice within the
    Justice Department?
        Ms. Pustay. The involvement that we have is totally
    acceptable and, as I said, exactly how it has always been. It
    is awareness for awareness and management purposes, and that is
    all.
        Senator Grassley. Thank you.
        Chairman Leahy. Thank you very much.
        Senator Cornyn.
        Senator Cornyn. I just have a few more questions.
        I noticed in the FOIA.gov website, which I compliment the
    Department for putting up--I hope it becomes very robust and
    something that people will be able to use for multiple
    purposes. But I noticed that for fiscal year 2010 the
    Department of Justice received, it looks like, 7,224 requests
    and--or I am sorry. It looks like that was the number of
    requests pending.
        Ms. Pustay. We get about 63,000 requests a year at DOJ.
        Senator Cornyn. OK. I read this wrong. So the number of
    requests pending at the start of the year was 7,224, and at the
    end of the year it is 7,538. So rather than chipping away at
    the backlog, the backlog is getting worse. Right?
        Ms. Pustay. Our backlog only increased by 204 at the
    Department of Justice, and that is despite receiving over 2,000
    more requests this past year than the year before. So----
        Senator Cornyn. I guess you are looking at the glass being
    half-full and I am looking at it being half-empty.
        Ms. Pustay. Absolutely. Absolutely. Out of 63,000
    requests----
        Senator Cornyn. And your backlog is getting worse. It is
    sort of like the Federal Government and spending. Our debt
    keeps getting bigger and bigger.
        Chairman Leahy. Let her finish the answer, though, if we
    could.
        Senator Cornyn. I am sorry.
        Chairman Leahy. I will make sure you have plenty of time to
    continue.
        Had you finished your answer?
        Ms. Pustay. Having increased our processing of requests--we
    processed more this past year than we did last year. Despite
    having received 2,000 more requests, the backlog only went up
    by 204. Out of 63,000 incoming requests for a year, I think
    that really is a remarkable statistic.
        Senator Cornyn. And at the end of the year, you had 7,538
    requests pending.
        Ms. Pustay. Yes. You are looking at--pending is different
    than backlog, but that could be right. Pending could mean it
    came in the day before the report was issued. Backlog means it
    is something that has been on the books over the statutory time
    period. So it is just two different stats. That is all.
        Senator Cornyn. And how many are in the backlog?
        Ms. Pustay. 204 out of sixty----
        Senator Cornyn. Out of the 7,538 pending?
        Ms. Pustay. Yes, exactly. Exactly. Our backlog increase is
    only 204.
        Senator Cornyn. Following up on Senator Grassley's
    questions, is it ever appropriate for political decisions to
    stall or block a FOIA request? Ms. Pustay?
        Ms. Pustay. No, not to stall or block. I certainly would
    not agree with those words.
        Senator Cornyn. I mean, that is simply not the law.
        Ms. Pustay. No.
        Senator Cornyn. As you pointed out, it is irrelevant who
    the requester is.
        Ms. Pustay. It is irrelevant who the requester is.
        Senator Cornyn. Or the purpose for which the information is
    being requested, correct?
        Ms. Pustay. Absolutely. Absolutely.
        Senator Cornyn. And don't you agree that if we were able to
    create a system whereby there were more timely responses by
    Federal agencies to FOIA requests, there would perhaps be a
    greater sense of trust and confidence among requesters that
    everybody was being treated exactly the same? In other words,
    when there is such a large backlog in requests or delays in
    producing the documents, it seems to me that that gives rise to
    concerns that maybe people are not being treated on an equal
    basis and the law is not being uniformly applied. Would you
    agree with that concern?
        Ms. Pustay. It is not at all my experience that that is a
    concern, and I have regular contact with requesters. I have a
    lot of outreach with the requester community, and, of course,
    just by working with agencies day in and day out. We see
    firsthand across the Government that on many, many occasions
    agency officials are communicating with FOIA requesters,
    explaining what the situation is, explaining what the backlog
    is, where a request might be in a queue. And in my experience,
    overwhelmingly requesters are understanding of the process.
        We have long had a policy of asking agencies to give
    contact information to requesters so that there can be a
    dialog. This is not something that is new. And it is a process
    that really does help increase understanding between requesters
    and agencies. So my experience is not at all in line with the
    concern that you are raising.
        Senator Cornyn. So everybody is happy with the----
        Ms. Pustay. Well, I am sure everyone is not happy, but they
    are accepting of the situation. Again, 600,000 FOIA requests
    across the Government is an incredible crush, an incredible
    workload, and it went up this past year.
        Senator Cornyn. Well, it should not be just looked at as a
    crush or a workload; it is the responsibility----
        Ms. Pustay. Oh, sure.
        Senator Cornyn.--under the law to respond on a timely
    basis, correct?
        Ms. Pustay. Sure, sure. I use those words--no, I absolutely
    agree. I use those words just to convey the magnitude of the
    interest in making requests.
        Senator Cornyn. And, Director Nisbet, I just have one final
    question of you. If I understand the record correctly, you were
    the one who mediated the Associated Press FOIA request of the
    Department of Homeland Security that resulted in the revelation
    of political screening. Can you tell us what your reaction was
    to the DHS conduct that was revealed in that story?
        Ms. Nisbet. Well, our part in that was that the Associated
    Press came to us because it had not gotten a response to its
    FOIA request for the e-mails on that subject. We were very
    pleased that we were able to help in that case and to help get
    those records released to the Associated Press, as a result of
    which the stories were written that Senator Grassley referred
    to.
        I have to say that is the only request that I can recall of
    that nature--you are asking about requesters complaining about
    that. But certainly that was a significant concern in that
    case, and we were glad that we were able to help.
        Senator Cornyn. And you shared that concern of political
    screening?
        Ms. Nisbet. Certainly. If the allegations are as written,
    that is a concern, and I believe that certainly my colleague
    from the Justice Department would agree with that.
        Senator Cornyn. Thank you.
        Senator Grassley. Could I have 15 seconds for an
    observation as we close this panel.
        Chairman Leahy. Go ahead.
        Senator Grassley. I do not dispute anything that you have
    told me because you said, well, it is not a whole lot different
    than it has been for 20 years. But, you see, that is what is
    wrong, whether it is 20 years under a Republican or 20 years
    under a Democrat. But it also tells me--the point I tried to
    make in my opening comment--that the President set a very high
    benchmark, and if we are doing the same thing after 2\1/2\
    years of this administration, the same as they have been doing
    for 20 years, the President's benchmark is not being followed
    by the people he appoints.
        Thank you very much.
        Chairman Leahy. Did you want to respond?
        Ms. Pustay. Yes.
        Chairman Leahy. OK, we will take time out of the next
    panel. Go ahead.
        Ms. Pustay. Just really, really quickly. My comment about
    things being the same was completely connected to the idea of
    the review or alerting of political officials of FOIA requests.
    That stayed the same. The process of FOIA has changed
    dramatically. I really have never seen transparency as fulsome
    and as robustly worked on as I have now. I think we are the
    most transparent that we have ever been. I think it is quite a
    different day now.
        Senator Grassley. Thank you.
        Chairman Leahy. Thank you.
        Thank you very much. We will take a 2-minute recess while
    we change panels.
        [Pause.]
        Chairman Leahy. Thank you. The first witness will be John
    Podesta. I feel he is certainly somebody who knows this room
    very well. He is my former Chief of Staff, formerly counsel
    here in this Committee, and currently serves as the president
    and CEO of the Center for American Progress. He had also been
    White House Chief of Staff to President Bill Clinton. He has
    held several other positions in the Clinton administration,
    including Assistant to the President, Deputy Chief of Staff,
    Staff Secretary, and Senior Policy Adviser in Government
    information, privacy, telecommunications, security, regulatory
    policy. He served in numerous positions on Capitol Hill.
        I apologize for the laryngitis this morning.
        He served as co-chair of President Obama's transition where
    he laid the groundwork for President Obama's historic FOIA
    memorandum, a memorandum which restored the presumption of
    disclosure of Government information. He is a graduate of Knox
    College and Georgetown University Law Center, where he is
    currently a visiting professor of law.
        Mr. Podesta, it is great to have you here. Great to see
    you.

     STATEMENT OF JOHN D. PODESTA, PRESIDENT AND CHIEF EXECUTIVE,
       CENTER FOR AMERICAN PROGRESS ACTION FUND, WASHINGTON, D.C.

        Mr. Podesta. Thank you, Mr. Chairman and Senator Grassley.
    It is great to be back in the Committee, and it could not be
    led by two greater champions of openness and accountability. So
    it is a pleasure to be here during Sunshine Week.
        I think this hearing comes at a momentous time for the
    Freedom of Information Act as it comes on the heels of last
    week's Supreme Court ruling in Milner v. Department of the
    Navy, which has been referred to, which properly narrowed the
    scope of the (b)(2) exemption 2 and the recent AT&T decision
    finding that corporations do not have a right of personal
    privacy under the Act. We should celebrate these victories, but
    there is more work to do.
        While President Obama has delivered in many respects on his
    promise to have the most transparent administration in the
    Nation's history, the results on FOIA, while improving, I think
    still have a long way to go. The problem, I think, Senators, is
    not one of policy. I think Attorney General Holder's FOIA
    memorandum tells Federal agencies that in the face of doubt
    openness prevails, and the Office of Management and Budget's
    Open Government directive instructs agencies to reduce backlogs
    by 10 percent a year.
        The problem, as I think this Committee has noted this
    morning, is in implementation. Federal agencies in the year
    after the Holder memo increased the use of legal exemptions to
    keep more records secret, according to the Associated Press,
    and the Justice Department continues to defend expansive agency
    interpretations of FOIA exemptions.
        I would note in the administration's favor they have
    reduced the use of the (b)(2) and (b)(5) exemptions in the past
    year, which I would characterize as ``We just do not want to
    give you the information exemptions in the Act.''
        So the question today is: How do we turn to good policy
    that is embedded in the President's and Attorney General's
    memoranda and OMB directives into reality? And I offer three
    ideas.
        First, along the lines of Senator Whitehouse, we should
    require automatic Internet disclosure for publicly useful data
    sets. FOIA, of course, rests on four key principles: Disclosure
    should be the general rule, not the exception. All individuals
    have equal right of access to information, as Senator Grassley
    has noted. The burden of disclosure should rest with the
    Government, not with the people. And people denied access to
    documents have a right to relief through the courts.
        As importantly as those four principles, when FOIA was
    passed, then Attorney General Ramsey Clark added another, which
    is that there needed to be a fundamental shift in Government
    attitude toward public records and the value of openness. Those
    principles need to be applied and that attitude needs to be
    updated for the digital age. You have done a good deal of that
    in the 2007 amendments that were processed by this Committee
    and championed by the Chairman and Senator Cornyn. But
    disclosure should be automatic, not just in response to
    requests, and it should be done through the Internet so
    everyone has easy and immediate access.
        I think the recent experience of Recovery.gov and Data.gov
    provide useful models for Congress to expand automatic
    disclosure under 552(a) of the Act. Congress can help by
    setting standards for exactly what should be automatically
    disclosed and disseminated.
        Second, we should build a searchable online data base where
    the public can track FOIA requests and view agency responses.
    The public in most cases cannot see what FOIA requests have
    been submitted to Federal agencies or what information was
    provided in response to those requests. The administration's
    planned FOIA.gov website will provide report cards on
    compliance. That is an important step in the right direction.
    It is not a great leap forward. We have proposed that if the
    Federal Government would automatically publish their FOIA
    requests as well as information provided in response through a
    centralized searchable, online data base, automating these
    functions will increase productivity. It will save money. It
    will serve the public better.
        Third, we need to improve information used to assess FOIA
    implementation. Annual agency FOIA reports, again, as the
    testimony this morning indicates, provide useful data on
    requests granted and denied. But the Department of Justice, for
    example, does not disclose the number and percentage of FOIA
    denials it chooses to defend. Nor do agencies report what they
    have done to comply with the Holder memo. So I think more can
    be done in that arena, too.
        And if I could, Mr. Chairman, I would like to call your
    attention to one other topic vital to openness and free debate.
    Two Senate bills introduced last month would criminalize the
    disclosure of classified information to unauthorized people.
    Protecting properly classified Government information from
    improper disclosure is an important priority. I think I have
    certainly earned my spurs trying to reduce the number of
    classified records while simultaneously better protecting
    classified information. But these proposals sweep too broadly.
    They create a chilling effect on legitimate Government
    communication. I think we have come too far without an official
    secrets act in our country, and we cannot afford to sacrifice
    that hard-won progress to shortsighted doubts. So I would ask
    you, Mr. Chairman, to take a look at those proposals. I do not
    think they will meet with your high standards of openness.
        Thank you.
        [The prepared statement of Mr. Podesta appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        Sarah Cohen is certainly familiar with this Committee and
    our work up here. She is Knight Professor of the Practice of
    Journalism and Public Policy at Duke University's Sanford
    School of Public Policy. She joined the School of Public Policy
    in 2009. She worked nearly 20 years as a reporter and editor,
    shared many of the major awards in journalism, including the
    Pulitzer Prize, the Goldsmith Prize, the Selden Ring Award, the
    Investigative Reporters and Editors Gold Medal, and I probably
    left some out. She holds a bachelor's degree from the
    University of North Carolina, Chapel Hill; a master's degree
    from the University of Maryland; and she is testifying today on
    behalf of the Sunshine in Government Initiative.
        Ms. Cohen, good to have you here.

     STATEMENT OF SARAH COHEN, KNIGHT PROFESSOR OF THE PRACTICE OF
    JOURNALISM AND PUBLIC POLICY, SANFORD SCHOOL OF PUBLIC POLICY,
       DUKE UNIVERSITY, DURHAM, NORTH CAROLINA, ON BEHALF OF THE
                   SUNSHINE IN GOVERNMENT INITIATIVE

        Ms. Cohen. Thank you very much, Chairman Leahy and Senator
    Grassley and members of the Committee. Thank you so much for
    the invitation to talk about the Freedom of Information Act in
    the digital age. In my reporting career, I depended frequently
    on the Act, and I appreciate this Committee's longstanding
    commitment to accountability and open records.
        In the past 2 years, President Obama's policies to promote
    accountability through open government has resulted in some
    policy changes that are beginning to affect day-to-day
    practice, but they are still not habit on the ground. Just one
    example is looser guidelines for releasing internal e-mails
    which contributed to our understanding of the Deepwater Horizon
    oil spill and its aftermath.
        But administrations change. These actions can be reversed
    as quickly as they began, and many of the President's
    initiatives are aimed at helping consumers find data and at
    collaborative Government. Public affairs journalism requires
    more than the products of a well-planned public information
    effort. It also requires access to the artifacts of governing.
        So FOIA remains a vital tool, and it is a tool that simply
    just does not meet its promise. You have heard in the past of
    problems that still have not been resolved, such as agencies'
    overuse of personal privacy exemptions. I know this Committee
    has worked hard to reduce the proliferation of special (b)(3)
    amendments, but they remain a concern.
        Today I would like to describe two of the biggest
    impediments to the effective use of FOIA among journalists, and
    I detail others in my written statement. But at core, they all
    suggest a widespread but wrong default position that records
    belong to the Government and not to the public. This position
    turns FOIA upside down. Instead of the Government convincing
    the public that certain information must be kept secret, in
    practice the public must convince officials that it should be
    released.
        The biggest problem in journalists' use of FOIA, as has
    been suggested here, is timeliness. Agencies are reporting
    improved response times, but we are not seeing them yet.
    Admittedly, reporters' requests are broad and difficult to
    fulfill, and the subjects are quite naturally politically
    sensitive. But I have never received a final answer to a FOIA
    within the deadline. Some reporters joke about sending birthday
    cards to their FOIA requests because response is measured in
    years, not days. And when asked, the Office of Government
    Information Services can prod agencies to respond, but so far
    we have seen little in the progress on delays.
        I wanted to highlight one consistent and growing source of
    delay. That is the requirement to vet contracts and other
    documents with the originator to identify trade secrets and
    other commercially confidential information. The records are
    then held hostage to the subject of the request. It gets to run
    the clock, and it often is granted extensive redactions, if it
    responds at all.
        The second point I want to make is that agency websites are
    incomplete and incomprehensible. I and other journalists have
    used FOIA to obtain Congressionally mandated reports on the use
    of funds in Iraq and Afghanistan, but they are not posted on
    the Defense Department or Inspector General websites. Original
    nursing home inspections with reviewers comments, a very common
    request among local reporters, requires individual FOIA
    requests. And even if these kinds of common documents were
    posted, the chance of finding them is slim.
        In 2009, the Associated Press tried to identify all of the
    major agencies' reading rooms so it could monitor them. It gave
    up after a week. The reporter had already found 97 reading
    rooms in just four departments.
        So what can Congress do to improve the implementation? It
    might go further than in recent years to enforce reasonable
    deadlines and appropriate use of exemptions. It could build the
    current policy of the presumption of openness into the law, and
    it could require disclosure in a central virtual location by
    Cabinet-level agency of common public records, such as
    correspondence logs, calendars, and spending awards, and it
    could more specifically define frequently requested records.
    Any combination of these would reinforce the idea that our
    Government holds transparency and accountability as a core
    value.
        Mr. Chairman, I hear you call again the public's access to
    records a ``cornerstone of our democracy.'' I appreciate the
    efforts made by Congress and President Obama to open our
    Government to scrutiny even when that effort may reflect poorly
    on its performance. But recent changes cannot be considered
    complete until compliance with current policy and deadlines is
    more consistent and a structure is erected to prevent this or
    the next President from reverting to secrecy.
        There are certainly times when the democratic need for open
    records conflicts with other vital priorities, such as privacy
    and national security. I believe journalists and their news
    organizations would be happy to work on these substantive
    issues if they could be assured that the law usually worked as
    it should.
        Thank you so much for the opportunity to talk with you
    about this.
        [The prepared statement of Ms. Cohen appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much.
        Our next witness is Thomas Fitton. He is the president of
    Judicial Watch, a public interest group that is set up to
    investigate Government corruption. He has been affiliated with
    Judicial Watch since 1998. He is a former talk radio and
    television host and analyst. He is the author of several
    published articles. He also previously worked at the
    International Policy Forum, the Leadership Institute, and
    Accuracy in Media. Mr. Fitton earned his bachelor's degree from
    George Washington University.
        Mr. Fitton, welcome. Please go ahead.

        STATEMENT OF THOMAS FITTON, PRESIDENT, JUDICIAL WATCH,
                            WASHINGTON, D.C.

        Mr. Fitton. Thank you, Mr. Chairman. Thank you, Chairman
    Leahy and Senator Grassley, for hosting this hearing. It is an
    honor for me on behalf of Judicial Watch to appear before this
    Committee, and I want to take some time to extend personal
    thanks to you both, the Chairman and Senator Grassley, for not
    only your leadership on Government transparency but your often
    unheralded work on behalf of Government whistleblowers. You
    helped at least one of our clients many years ago, and I am
    sure you have helped many other whistleblowers over the years,
    and these brave folk are often alone in their efforts to expose
    Government wrongdoing. So your help is crucial and has been
    crucial to saving jobs and careers.
        Essential to Judicial Watch's anticorruption and
    transparency mission obviously is the Freedom of Information
    Act. We are probably the only group on the right that uses it
    the way we do. We have used this tool effectively to root out
    corruption in the Clinton administration and to take on the
    Bush administration's penchant for improper secrecy. We have
    nearly 17 years' experience using FOIA to advance the public
    interest, and without a doubt, we are the most active FOIA
    requester and litigator operating today.
        The American people were promised a new era of transparency
    with the Obama administration. Unfortunately, this promise has
    not been kept.
        To be clear, the Obama administration is less transparent
    than the Bush administration.
        We have filed over 325 FOIA requests with the Obama
    administriation, and we have been forced to file 44 FOIA
    lawsuits against the Obama administration to enforce the law.
        Administratively, Obama administration agencies have built
    additional hurdles and stonewalled even the most basic FOIA
    requests. The Bush administration is tougher and trickier.
        And once we are forced to go to Federal court, the Obamam
    administration continues to fight us tooth and nail. The Obama
    administration's litigious approach to FOIA is exactly the same
    as the Bush administration's, so one can imagine the
    difficulties we encounter litigating these issues in court
    against the Obama Justice Department.
        As you know, we have been investigating the bailouts,
    particularly Fannie and Freddie, trying to find out about
    political contributions and other key documents. The Obama
    administration has taken the position that, despite the fact of
    Fannie and Freddie putting taxpayers on the hook for trillions
    of dollars, including at least in the current number $153
    billion in funds expended for Fannie and Freddie, the Obama
    administration has taken the position that not one of those
    documents is subject to the Freedom of Information Act. These
    agencies have been taken over completely by the Federal Housing
    and Finance Administration, and yet they say no one has a right
    to these agencies' records, nor will they be subject to
    disclosure. We are at the appellate stage on that issue in
    terms of litigation.
        In addition, to the walling off of control of our Nation's
    mortgage market through Fannie and Freddie from public
    accountability, the Obama Treasury Department has been
    seemingly incapable to disclosing even basic information on the
    various Government bailouts.
        So I cannot quite fathom how this Administration can laud a
    new era of transparency while over $1 trillion in Government
    spending is shielded from practical oversight and scrutiny by
    the American people.
        This Committee may also be interested to learn the truth
    behind the Obama White House's repeated trumpeting of the
    release of Secret Service White House visitor logs. In fact,
    the Obama administration is refusing to release tens of
    thousands of visitor logs and insists, following a Bush
    administration legal policy developed at the end of that
    administration, that they are not subject to the Freedom of
    Information Act. Obviously, the Secret Service is part of the
    Department of Homeland Security. Those records are subject to
    the Freedom of Information Act.
        In 2009, we were invited to the White House to visit with
    Norm Eisen, then Special Counsel to the President for Ethics
    and Government, to discuss Judicial Watch's pursuit of these
    visitor logs, and we were told by the Obama White House in no
    uncertain terms that they wanted us to publicly encourage and
    praise them for being transparent, saying it would be good for
    them and good for us. Well, they refused to release these
    records as they are supposed to under FOIA, and we were forced
    to sue in court.
        On top of this, we have the issue that now White House
    officials are meeting across the street at the White House
    Conference Center and in Caribou Coffee with lobbyists and
    others to avoid disclosing their names under this voluntary
    disclosure policy they have put out related to visitor logs. So
    rather than visiting people at the White House, where their
    names might be subject to disclosure, they are meeting outside
    the White House. How does that comport with the President's
    commitment to transparency?
        We have been reading about the 1,000-plus Obamacare waivers
    that have been issued by the Department of Health and Human
    Services. We have yet to receive one document in response to
    our request, and now a lawsuit, after 5 months, about any of
    those waivers, not one document.
        And my final example briefly is the Department of Homeland
    Security--we had asked for a report about an illegal alien who
    is accused of running into and killing a nun. The report was
    sent, according to the reports, to the Department of Homeland
    Security Secretary Napolitano last year. We asked for the final
    report. They said, ``We will give it to you.'' And then they
    said to us at court, ``By the way, that report is not final. It
    is a draft and you cannot have it. We are still working on the
    final report.'' Well, we just got it last month, and the report
    was dated November 24th. That to me is an indication of ham-
    handedness, only political appointees could be involved in that
    sort of process.
        So those are the concerns we have----
        Chairman Leahy. Excuse me. You did get the report, though?
        Mr. Fitton. We did get a report dated November 24th, but I
    do not know how a report dated November 24th could still be
    being worked on in January, February, and March.
        Chairman Leahy. I just want to make sure we understood that
    you got it.
        Mr. Fitton. That is right.
        Chairman Leahy. I am sorry you have not been able to get
    the records of the visits during the Bush administration, and I
    was not able to, either.
        [The prepared statement of Mr. Fitton appears as a
    submission for the record.]
        Chairman Leahy. Let me go back to Mr. Podesta. You led the
    effort during the Clinton administration to restore the
    presumption of disclosure for Government information, and it
    has been testified that policy changed under the next
    administration, the Bush administration. You worked to make it
    more open under the Obama administration. Now, these are
    Presidential policies that could change from President to
    President. Should we enact some legislation to codify the
    presumption of disclosure, whether it is a Democratic or
    Republican administration?
        Mr. Podesta. Well, I would certainly support that, Mr.
    Chairman. Let me say that I think the structure of the Act, as
    I noted in my opening statement, really does create at some
    level the presumption of openness because, as the FOIA changed
    the previous law in 1966, the right of every person to every
    record subject to narrow exemptions and the right to go to
    court does embed in the FOIA itself a presumption of openness
    and disclosure.
        I think there is one place that is in particular need of
    legislative attention, and that is with respect to classified
    information. I was able to serve on Senator Moynihan's
    Commission that studied the problems of Government secrecy. He
    suggested and had bipartisan support across the political
    spectrum for a set of recommendations that included codifying
    the presumption of openness, particularly in the (b)(1)
    exemption, and that has been subject to change back and forth
    with the passage of administrations. And I think that is
    something that the Committee did consider when that report was
    issued in the 1990s, but it should take a second look at it. It
    is an extremely important report on Government secrecy.
        Chairman Leahy. I would like to see a better understanding
    of what should be classified and what is not. I mean, we had
    some strange new classifications that came up a few years ago
    that no one ever heard of. I remember being in a closed-door,
    top-secret briefing, and the first two items that came up were
    not top secret. One was either a Time or Newsweek cover, and
    the other was something else that had been published in a
    scholarly paper that had been available for several years.
        There was some discussion among those who were there--and I
    am trying to be vague about what the subject was we were
    discussing--that perhaps the briefers had lost some credibility
    by beginning with those two. It reminds me of a long time ago,
    another head of the CIA who would come running to the Hill
    every time the press had disclosed something and say, ``Well, I
    meant to have told you about this.'' And I told him that he
    should take the New York Times, instead of coming up for
    briefings, mark it ``Top Secret'' and deliver it to each of us.
    We would get the information in a more timely fashion. We would
    certainly get it in far greater detail than he ever gave us.
    And we would get that wonderful crossword puzzle.
        Ms. Cohen, I know you are here today representing the
    Sunshine in Government Initiative. I know that my story of this
    former Director of the CIA about the New York Times can be said
    about many other newspapers, just to point out that we
    oftentimes, including people here in Congress, rely more on the
    media to get this information than we do from whoever is in
    Government. The producers recently of an award-winning
    documentary film about Lyme disease, entitled ``Under Our
    Skin,'' reported that a Freedom of Information Act request they
    submitted to the Centers for Disease Control back during the
    last administration, in 2007, is still outstanding. And you
    have testified that during your time as an investigator
    reporter you never received a timely response to a FOIA
    request.
        So what does that do if you are trying to report on
    something, say a health scare where parents may be wanting to
    read about something that might affect their children's health
    or a medication that a cancer patient is taking or whatever it
    might be, and the press often is the one that blows the whistle
    first. But what happens if you cannot get timely FOIA?
        Ms. Cohen. Well, there are two issues that happen, I think.
    The first one is in a case of a public event, a health scare,
    frankly you get the documents unofficially. You are going to
    find a way to report that story. And if you have to get them
    through leaks or through some other way, you will get them that
    way.
        I think the more frightening thing are the stories that are
    never done, that the public never hears about. There is a
    reporter in Texas who, after a year and a half, gave up on
    doing a story on private security contractors who are
    protecting Federal courthouses because he was convinced he was
    never going to get those records, and he has never done that
    story. And the problem is that most reporters go in with
    questions, not answers, and if you cannot even ask the
    question, you can never even find out whether or not you are
    going to get the answer. So I think that is the more
    frightening part of that.
        Chairman Leahy. And after you have been stonewalled long
    enough, your editor is going to say, ``Hey, we are paying you.
    I am going to put you on something else.''
        Ms. Cohen. Well, yes, you move on. I mean, there are plenty
    of stories to be done, and if it is futile and you are not sure
    of what the answer is going to be, it may be that there is no
    problem, and so you move on.
        Chairman Leahy. My time is used up. Senator Grassley.
        Senator Grassley. Thank you.
        Mr. Fitton, AP published yesterday, ``Promises, Promises:
    Little transparency progress,'' concluding that in year two the
    administration's performance was mixed and that it was
    struggling to fulfill the President's promises on transparency.
        The first question very briefly: Based on your firsthand
    experience, do you agree with the evaluation of the Obama
    administration's performance in the first year, which was rated
    at C or lower?
        Mr. Fitton. Yes. I would give it a failing grade.
        Senator Grassley. Two, how would you grade the Obama
    administration's performance during the second year?
        Mr. Fitton. It is still failing. To be specific, we
    appreciate the increased availability of Government material on
    the Internet, but about matters of public interest and
    controversy, in terms of getting information from the
    administration, it is as difficult if not more difficult than
    ever.
        Senator Grassley. You are familiar with Tom Bridis'
    investigative report for AP. According to the report, in 2009
    and 2010, Homeland Security diverted requests for records to
    senior political advisers who often delayed the release of
    records they considered politically sensitive. The political
    vetting often delayed the release of information for weeks
    beyond the usual wait. According to an AP report, Homeland
    Security rescinded the rule prior to political--for prior
    political approval July of last year. Supposedly under a new
    policy, records are now submitted to the Secretary's political
    advisers 3 days before they are made public, but can be
    released without their approval.
        Based on your experience, are President Obama's political
    appointees still engaging in a politicized approach to handling
    requests for information under FOIA and to litigating lawsuits
    under the Act?
        Mr. Fitton. Yes, and certainly our experience with the
    Department of Homeland Security is consistent with that,
    specifically the release of this final report that became a
    draft report, that became a report in progress, that became a
    report that was finished in November of 2010.
        Senator Grassley. Expand a little bit on your experiences.
    How widespread is the politicized approach to requests for
    information under FOIA?
        Mr. Fitton. Well, you see indications of the politicization
    when the response makes no sense to you, as I say, with the DHS
    memo or where you are told that, ``We are not even going to
    look for documents because nothing you are asking for would be
    subject to disclosure, so we are not going to bother looking.''
    Or with, frankly, the request more recently of the FBI files.
    We asked for the documents related to Ted Kennedy's FBI file,
    and we had to push and push and push, and the FBI pushed back
    on us, and it turned out to be they did not want to release
    embarrassing information. They ended up releasing it to us in
    the end, but it came after 9 months of fighting. And that to me
    was an example of the administration for political reasons
    withholding embarrassing information about, well, a recently
    deceased friendly voice.
        Senator Grassley. Your organization has extensive
    experience with the tactics employed by this administration by
    political appointees in handling FOIA. Based on what you have
    seen, do you believe an independent investigation is warranted?
        Mr. Fitton. Yes.
        Senator Grassley. And if so, do you have any suggestions or
    recommendations on who should investigate politicized
    compliance with Freedom of Information Act requests and what
    the parameters of that investigation might be?
        Mr. Fitton. Well, if you think the law is important, you
    would have an independent counsel of some type appointed by the
    agency or by the Justice Department. If you think the law is a
    law to be trifled with, that it is a big joke--which I think
    that is how it has been treated from administration to
    administration. The politicization of FOIA did not begin with
    the Obama administration. But we were told it would end, and it
    has not.
        Senator Grassley. My last question. As I noted before, your
    organization has significant experience. What is your
    evaluation of the Office of Government Information Services?
    What is the general impression of the requester community about
    the Office of Government Information Services?
        Mr. Fitton. That agency may be helpful to non-expert
    requesters in terms of helping them with the FOIA process. We
    have used it a little bit to try to speed along certain
    requests, and we have been successful in that regard. But when
    you are in a fight or a dispute with an agency, you are not
    going to rely on that because you can go to court and get
    finality as to what the dispute is. You are not going to get
    finality through this agency.
        Senator Grassley. My last question is whether or not you
    have got any suggestions for improving the Office of Government
    Information Services.
        Mr. Fitton. Well, I would not focus on another layer of
    bureaucracy, personally. I would focus on the agencies and the
    political appointees and making sure that there is a commitment
    to FOIA. Our Government, for better or for worse, depending on
    your point of view, is doing more than ever, and FOIA has not
    caught up with it.
        Senator Grassley. Mr. Chairman, I want to thank you so much
    for this sort of hearing, but it is something that you have
    just got to keep your hands on all the time if we are ever
    going to beat down these road blocks.
        Chairman Leahy. I have been doing it for over 30 years and
    will continue.
        Senator Grassley. I know it. That is all the more reason we
    have got to work hard.
        Chairman Leahy. Thank you.
        Senator Whitehouse, then Senator Franken.
        Senator Whitehouse. Were the panelists here when I asked my
    questions to the first panel? Could I ask each of you to
    respond? The topic being here we are in the Google age, the
    digital age, what are the best steps that we can do to make the
    FOIA banks more accessible to the public, even people who just
    do not want to file a FOIA themselves but just want to use it
    for research purposes?
        Mr. Podesta. Yes, Senator, my prepared testimony and my
    statement this morning go into that in some detail. I think
    there are two large baskets that you should be looking at. One
    is information that ought to be automatically disclosed without
    resort to FOIA requests. The Obama administration has taken
    some criticism from Mr. Fitton. I do not think there is any
    question that it has gone further than any administration in
    history in putting out information, particularly on
    Recovery.gov, Data.gov, and putting up useful information to
    the public.
        The Freedom of Information Act always had a provision that
    required certain information to be published as a pro forma
    matter. That has been expanded to include responses to FOIA
    requests in which people have--the agency thought that it would
    be requested again, so they put it out there. But that could be
    taken much, much further. So that is one area to exploit--my
    written testimony goes into some areas where that might be
    particularly useful.
        A second area is that FOIA requests themselves, as a result
    of the legislation that was passed by the Chairman and Senator
    Cornyn, there is now a requirement that FOIA requests get a
    docket number. The requests themselves can be published into a
    common data base. The responses can be put into a common data
    base. That would actually probably be a more productive way to
    process requests, would save money in the long run, and provide
    valuable information to the public.
        Senator Whitehouse. Do you think that the notion of a
    search engine on FOIA.gov that can go through the websites of
    different departments is adequate?
        Mr. Podesta. Sure, I mean--no. I think what FOIA.gov does
    is to try to have a common set of policies, give people some
    better tools to basically interact with Federal agencies on
    FOIA, but I think it could definitely go further.
        And, again, I think Recovery.gov is a good example in which
    if you put the data out there, people in the private sector
    will think of all kinds of interesting ways to utilize that
    data to create more productivity that can come from having open
    access to Government information.
        Senator Whitehouse. Ms. Cohen.
        Ms. Cohen. Yes, there are a couple things. I think your
    thoughts on the searchable FOIA is excellent. I just want to
    mention that when we have been talking about these frequently
    requested records or common records, it is so inconsistent
    whether or not those are ever posted. I know that virtually
    every FOIA request I have ever made has never shown up on a
    Government website except when it was posted before it was
    responded to, to me. So those sites have a long way to go, but
    you do need a search engine to go through them. I think there
    must be several hundred of those sites out there.
        And the second thing that I have mentioned in my written
    testimony is to also spend some time administratively looking
    at the systems that are used to generate records. One of the
    real problems here is that the records systems still cannot be
    searched in a way that then produces an efficient system, so
    that the review of how agencies are redoing their records
    systems I think might include a review of whether or not there
    is transparency in those records systems built in, because
    there really is not right now.
        Senator Whitehouse. Mr. Fitton.
        Mr. Fitton. Yes, Senator. Some folks specialize in FOIA'ing
    FOIAs: Give me the list of all the FOIAs, and look for the
    juicy ones, and then pursue those a little bit more.
        Obviously, putting out large swaths of information is good,
    and there has been progress in that regard. There has been some
    concern that a lot of the information, it was reported last
    week, was not correctly input. I think that is more a matter of
    competency than anything else.
        But as I noted, in matters of public controversy, the
    Internet is not going to be where you find that. For instance,
    the decision whether or not to put Fannie and Freddie into
    conservatorship, we are litigating that right now. Decisions
    about the bailout, about why those decisions were made, the
    deliberative process type of decisions, that is where you get
    into disputes, and obviously that is where the interest is in
    terms of the public on matters of controversy or where there
    may be concerns about the decisionmaking and what went into it.
    And that is unlikely to get onto the Internet, and if it does
    get onto the Internet, right now you are going to have
    difficulty finding it.
        Senator Whitehouse. But it would at least enable the
    resources that these agencies have, limited resources, to
    respond to FOIA requests to be dedicated to those more
    challenging ones that you are suggesting rather than chasing
    around the day-to-day stuff because that could be more readily
    accessed automatically.
        Mr. Fitton. Right.
        Senator Whitehouse. And so it would be even helpful in that
    sense to the more challenges requests. No?
        Mr. Fitton. That is right. For instance, the BP oil spill,
    many thousands of documents have been posted by the
    administration, appropriately so, on the Internet and we got
    them separately. But we are happy to use the Internet--if we
    think the documents are there and we are confident that they
    are all responsive to a particular request. We do not--believe
    it or not, we do not want to sue if we can avoid it. We would
    be happy to avoid litigation.
        Chairman Leahy. Thank you, and I am going to turn the gavel
    over to Senator Franken, who has been extraordinarily patient,
    but who has also been very valuable to this Committee and has
    helped in this area.
        Senator Franken [presiding]. Thank you. I came from Indian
    Affairs, and I just stepped out for some people from
    Minneapolis City Council, to talk to them, so I think I am
    picking up--or I may not even be picking up. I may just be
    repeating what Senator Whitehouse just said, so I do not want
    to do that. But the gist of what I think I heard, because I
    heard the last 15 seconds of Mr. Fitton's answer, is that if
    you put online pretty much everything, I think that Mr.
    Fitton's premise might have been--I am extrapolating from the
    last 15 seconds of your answer--that if the administration just
    puts everything online, they are still not going to put online
    some of the most controversial stuff, which is the kind of
    stuff that you want. Is that right?
        Mr. Fitton. I would suspect that.
        Senator Franken. You would suspect that, and probably have
    a reason to, right?
        Mr. Fitton. Well, there are privileges, you know, there are
    lawful reasons for withholding information, and often
    discretionary. Some administrations will be more willing to
    release information than others, and that is where the
    litigation comes in.
        Senator Franken. Right. But by putting on so much, like in
    the BP thing, they put on stuff that was very helpful, right?
    They put up a whole BP site basically about the spill, right?
        Mr. Fitton. Right.
        Senator Franken. OK. So that is very helpful. And then it
    sort of makes it more efficient to go after the more
    controversial stuff if everything else has been online. That is
    what you have been suggesting, Mr. Podesta, right?
        Mr. Podesta. That is right, Senator. And, you know, I think
    that as I said, the kinds of things the Government might think
    of as being useful in that data are probably small in
    comparison to what citizens could think of to make that data
    useful once it is up and once it is online. And that is where I
    think you can get--you know, it is the power of Google. All of
    a sudden you have got----
        Senator Franken. It sounds like a Wikipedia kind of thing
    where citizens can go in and say, ``Why don't you put this up?
    Why don't you put that up?'' Is that what you are talking
    about?
        Mr. Podesta. I think it is both what they put up but also
    what you do to make that information useful. I will give you a
    specific example. We just did a return on investment of every
    school district in the country based on money that went into
    that district, State and local and Federal, and what the return
    was on the outside.
        Now, the Department of Education could have done that, but
    they did not do it, but, you know, we found a way to do that.
    And I think once that data is available in good data sets, then
    people will think of imaginative ways that will improve the
    productivity of Government and, you know, lead to breakthroughs
    in all kinds of ways.
        Senator Franken. Let me ask you about this, because you
    have been in an administration as Chief of Staff, and during
    the Clinton administration I am sure there was--I mean I know
    there was a tremendous number of FOIA requests. And I am, you
    know, very--you know, I want FOIA to work, and I want people to
    be able to get the--I think the journalists should be able to
    get the stuff they want.
        Did you ever get the feeling that there were just fishing
    expeditions during the Clinton administration?
        Mr. Podesta. Of course.
        Senator Franken. OK. And----
        Mr. Podesta. And, by the way, there is nothing wrong with
    that. Sometimes you catch fish.
        Senator Franken. OK.
        [Laughter.]
        Senator Franken. But let me ask you about that, though. As
    I recall, during that period there seemed to be an incredible
    amount of requests coming from the House of Representatives,
    and from other places. Did that in a sense make it harder to
    comply with actual real--not legitimate but a more serious kind
    of--Ms. Cohen, why don't you answer this? Does that tend to
    make it harder for people like you who are really going after
    something?
        Ms. Cohen. Well, I think a lot of people would say that we
    go on fishing expeditions as well. The nature of those kinds of
    requests, whether they come from other branches of Government
    or from journalists, is that they are very broad and they do
    not know exactly what they are looking for. And I think that is
    an important thing for both journalists and other people to be
    able to do. It certainly is--it does make it more difficult on
    the people who are trying to answer it, but I think those are
    also the kinds of requests that a place like Judicial Watch is
    doing.
        I do think that if you put more of the things that you have
    already found on the Internet, it does free up some resources
    to get to those ones.
        Senator Franken. OK, which is where Senator Whitehouse
    ended and where I started. Let me take a couple moments. Mr.
    Fitton, thank you for complimenting both the Ranking Member and
    the Chairman on whistleblowers. I think it is very important to
    protect whistleblowers. I was a little confused about the
    visitor logs at the White House and the Caribou Coffee thing.
    If they are not allowing the visitor logs, why would they go to
    Caribou Coffee?
        Mr. Fitton. Well, they are disclosing them voluntarily
    after, I think, August of 2009. Anything before that you have
    to ask them specifically, and they may withhold information.
    The question is not whether----
        Senator Franken. Wait a minute. I am sorry. I was very
    confused about that.
        Mr. Fitton. They are voluntarily disclosing the visitor
    logs, but they are saying it is a voluntary disclosure, it is
    not pursued through the Freedom of Information Act. During the
    Bush administration, we had asked for the visitor logs related
    to Jack Abramoff, and we were given those logs pursuant to
    litigation, but also pursuant to the Freedom of Information
    Act. Then the left started asking the Bush administration for
    more interesting visitors from their perspective, and the Bush
    administration said, Enough of this, we are going to say that
    these logs are not subject to the Freedom of Information Act.
    The Obama administration continues with that legal position.
        The voluntary disclosure is subject to caveats. They can
    release--withhold names based on--for political reasons, that
    they are meeting with appointees or someone they do not want to
    be disclosed within a certain amount of time. So they know they
    are voluntarily disclosing this information, and then they are
    going across the street--or so it has been reported in the New
    York Times--to Caribou Coffee to avoid this voluntary
    disclosure. So they are saying they are not subject to
    disclosure under the law, the disclosure is voluntary, and that
    can be reversed either by this President or any subsequent
    President. So, you know, we are still in the position of trying
    to get information pursuant to the law, and we are unable to do
    it.
        Mr. Podesta. Senator, I think this is one of those examples
    of no good deed going unpunished. I think the administration
    has put more information about who goes in and out of the West
    Wing of the White House than obviously any administration in
    the past, including the one in which I served. And I think
    that--you know, so Mr. Fitton's complaint is--and that is
    regularly updated. They did the process, I do not know, for the
    first 6 months in August of 2009, but now they regularly and
    routinely update who goes in and out of the White House. I
    think it will be difficult, although certainly not impossible,
    to reverse that decision and decide that--particularly in this
    administration but in subsequent administrations as well, to
    decide that the public does not have a right to know who is
    walking in and out of the West Wing of the White House.
        Senator Franken. Thank you.
        Mr. Fitton. Just briefly, the Office of Administration
    voluntarily complied with FOIA even though it did not think it
    was subject to Freedom of Information, and that changed under
    the Bush administration. We used to get material from the OA
    from the Clinton administration and during parts of the Bush
    administration, and then they shut it off, and it has not been
    turned on again. It can stop.
        Mr. Podesta. Mr. Fitton and I could go on about this. I
    spent many quality hours before Judge Lamberth explaining what
    our information practices were in the Clinton White House with
    Mr. Fitton's predecessor at Judicial Watch. But I think that--
    and he did note that, I think, good public practice comes into
    play and Presidents change and they can move in the wrong
    direction. But I am not sure exactly what Mr. Fitton's
    recommendation is for resolving this particular controversy.
        Senator Franken. Well, I want to thank you both, and you
    can continue----
        Mr. Podesta. Cameras in Caribou Coffee.
        Senator Franken. I think you can continue the conversation
    in Caribou Coffee.
        [Laughter.]
        Senator Franken. Thank you all for coming today. The record
    will be held open for a week for additional material and
    questions.
        This hearing is adjourned.
        [Whereupon, at 12:06 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
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