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

                                                        S. Hrg. 112-296



                               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

73-178                    WASHINGTON : 2012
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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
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director

                            C O N T E N T S




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


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



                        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 

                      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 
    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.

                            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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    [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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Cornyn. I am sorry.
    Chairman Leahy. I will make sure you have plenty of time to 
    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 
    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 
    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.
    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 


    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 
    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.


    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 
    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 
    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.

                        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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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.
    Senator Franken. Thank you all for coming today. The record 
will be held open for a week for additional material and 
    This hearing is adjourned.
    [Whereupon, at 12:06 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record