[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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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
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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
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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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