[Senate Hearing 113-883]
[From the U.S. Government Publishing Office]
S. Hrg. 113-883
OPEN GOVERNMENT AND FREEDOM
OF INFORMATION: REINVIGORATING
THE FREEDOM OF INFORMATION ACT
FOR THE DIGITAL AGE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MARCH 11, 2014
__________
Serial No. J-113-52
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
28-395 PDF WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
MARCH 11, 2014, 10:20 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 70
WITNESSES
Witness List..................................................... 27
Bennett, Amy, Assistant Director, OpenTheGovernment.org,
Washington, DC................................................. 17
prepared statement........................................... 43
Cuillier, David, Ph.D., Director and Associate Professor, The
University of Arizona School of Journalism, and President,
Society for Professional Journalists, on behalf of The Sunshine
in Government Initiative, Tucson, Arizona...................... 19
prepared statement........................................... 54
Metcalfe, Daniel J., Adjunct Professor of Law and Executive
Director, Collaboration on Government Secrecy, American
University Washington College of Law, Washington, DC........... 21
prepared statement........................................... 62
Nisbet, Miriam, Director, Office of Government Information
Services,
National Archives and Records Administration, Washington, DC... 6
prepared statement........................................... 37
Pustay, Melanie Ann, Director, Office of Information Policy, U.S.
Department of Justice, Washington, DC.......................... 4
prepared statement........................................... 28
QUESTIONS
Questions submitted to Prof. Daniel J. Metcalfe by Senator
Grassley....................................................... 73
Questions submitted to Miriam Nisbet by Senator Grassley......... 74
Questions submitted to Miriam Nisbet by Senator Leahy............ 77
Questions submitted to Melanie Ann Pustay by:
Senator Cornyn............................................... 72
Senator Grassley............................................. 75
Senator Leahy................................................ 78
ANSWERS
Responses of Prof. Daniel J. Metcalfe to questions submitted by
Senator Grassley............................................... 80
Responses of Miriam Nisbet to questions submitted by Senator
Grassley....................................................... 85
Responses of Miriam Nisbet to questions submitted by Senator
Leahy.......................................................... 86
Responses of Melanie Ann Pustay to questions submitted by:
Senator Cornyn............................................... 102
Senator Grassley............................................. 89
Senator Leahy................................................ 96
OPEN GOVERNMENT AND FREEDOM
OF INFORMATION: REINVIGORATING
THE FREEDOM OF INFORMATION ACT
FOR THE DIGITAL AGE
----------
TUESDAY, MARCH 11, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:20 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Franken, Blumenthal, and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Thank you all for being here. I apologize
for being a few minutes late. Once or twice a year, the Chief
Justice brings in what is called the Judicial Conference with
the chief judges of all the circuits, as well as some others,
for a meeting, and a number of us come and brief or answer
questions. I was there in this capacity, and so was the
Attorney General and others. I also had been tied up on the
floor earlier and ran a little bit late. But I wanted to have
this hearing, and I will stay here as long as I can, and then I
think Senator Franken will take over the gavel.
But we are going to talk about the Freedom of Information
Act. All of you refer to it as ``FOIA.'' And as we stream what
we do here, I will call the whole Freedom of Information Act,
``FOIA,'' from now on. But we also commemorate the annual
celebration of openness in our democratic society called
``Sunshine Week,'' which will take place next week. I will be
in Vermont talking about it in several places.
For almost a half a century, the Freedom of Information Act
has translated our American values of government openness and
accountability into practice by guaranteeing the public's right
to get information. So I think it is time that we take stock of
just where we are, what progress we have made during the last
decade as we tried to improve FOIA. We will also examine
proposals to reform FOIA to address new technologies that were
not even imagined at the time it was written and the challenges
that remain when citizens seek information about their
Government.
Five years after President Obama issued Presidential
directives on FOIA and open government, we have seen some
progress. Backlogs of FOIA requests are on the decline, a trend
that started during his first term. Online tools such as
Data.gov, FOIA.gov and the FOIA portal, and the Obama
administration's new FOIA IT Working Group have modernized it.
It is a step in the right direction, but I think we all agree
there is more that remains to be done, and I feel that much of
the progress has come too slowly.
A new study by the Center for Effective Government, which
graded the responsiveness of the 15 Federal agencies that
process the most FOIA requests, found that half of these
agencies failed to earn a passing grade. Another impediment to
the FOIA process is the growing use of exemptions to withhold
information from the public. According to a 2013 Secrecy Report
prepared by OpenTheGovernment.org, Federal agencies used FOIA
Exemption 5 to withhold information from the public more than
79,000 times in 2012--a 41-percent increase from the previous
year.
I might say parenthetically that if you start marking
everything classified, nothing is classified. I have been in
meetings where among the things that have been brought up and
marked classified were the covers of a couple of news
magazines. That is getting a little bit carried away.
I am concerned that the growing trend toward relying upon
FOIA exemptions to withhold large swaths of Government
information is hindering the public's right to know. It becomes
too much of a temptation if you screw up in Government to just
mark it ``top secret.'' That is why I have long supported
adding a public interest balancing test to the FOIA statute so
Federal agencies consider the public interest in the disclosure
of information before issuing a FOIA exemption.
And this is a bipartisan effort. Seven years ago, Senator
Cornyn, a Republican from Texas, and I worked together to
establish the Office of Government Information Services, OGIS.
We wanted OGIS to mediate FOIA disputes and to make
recommendations to Congress and to the President on how to
improve the FOIA process. I am encouraged by the good work that
OGIS is doing, but I worry the office does not have the
sufficient independence, authority, but especially resources to
fully carry out its work. The office is critical to keeping our
Government open and accountable to the American people. So I
will continue to work so they get the tools and the resources
necessary.
During both Democratic and Republican administrations, and
both Democrats and Republicans as Chair of this Committee, this
Committee has had a proud tradition of working in a bipartisan
manner to protect the public's right to know. Working together,
we have enacted several bills to improve FOIA for all
Americans. I value the strong partnerships that I have formed
with Ranking Member Grassley and Senator Cornyn on open
government matters. So I look forward to that continuing
because it really makes no difference whether you have a
Democrat or a Republican as President. The American public is
served only if it knows what its Government is doing and why.
And that is something that should unite--as it has united
Senator Grassley and I and others--should unite us and keep us
going.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman. I always enjoy
this hearing. And from what you just said, let me emphasize
that there is not any distance between you and me on this
subject, and I hope that that broad-based political support
will send a clear signal to everybody in the bureaucracy, not
just these two people here, of the importance of the public's
information being public.
This hearing provides us an opportunity to focus on how the
Government handles the Freedom of Information Act. As I have
said before, it has been my experience that every
administration, whether Republican or Democrat, just what the
Chairman said, has challenges in providing the degree of
transparency desired by so many--a right of citizens to know
and, more importantly, as I have said, public information ought
to be public.
Unfortunately, this administration, as administrations
before, continues to fail to provide the transparency in this
particular case, maybe a higher standard set by the President
himself because of the statements he made of this being the
most transparent administration in history. This is troubling,
as we all were told that fact on January 21st, 1 day after he
was sworn in as President the first term. We need to do better
than the status quo.
I expect that we will hear about some of the changes in
technology that are taking place to make the FOIA process
better. This is important, and improvements are, in fact,
needed. But we also must remain focused on improving the way
Government thinks about transparency and freedom of
information. All of the changes to technology will be futile if
there is not a change of attitude.
On this point about change of attitude, at last year's
hearing I questioned what the Justice Department was doing to
improve the way people think about transparency. I hope to hear
today what has been done to change the so-called culture of
obfuscation among freedom of information officials. The term
``culture of obfuscation,'' et cetera, is a quote.
The Justice Department and its Office of Information Policy
has a unique and special role with regard to FOIA. The Office
of Information Policy can have a profound impact on FOIA. It
can tackle head-on the governmentwide ``culture of
obfuscation'' problems. I am concerned, though, that rather
than lead in a positive way, this office has reacted in a way
that is contrary to the President's transparency promise.
I am frustrated with the legal argument that the Justice
Department and the Federal Election Commission made in a recent
FOIA case. This is Citizens for Responsibility and Ethics in
Washington v. FEC. The Justice Department made an argument
that, in the view of many, undermined FOIA.
Fortunately, the D.C. Circuit Court of Appeals, in a
unanimous decision, rejected the administration's argument. The
D.C. Circuit said the Government's position would create a
``Catch-22'' situation, leaving requesters in limbo for months
or years. That result is not what Congress or the law
envisions. I am glad the court got this one right, but it is a
shame that it even had to consider the question.
What message does the Justice Department's argument send to
other agencies, meaning the argument in that case? I fear this
``do as I say, not as I do'' approach emboldens the agencies to
craft legal maneuvers that undermine Freedom of Information
compliance. That is what the Federal Election Commission did,
and the Justice Department was right there to help them in the
court.
Given the Justice Department's leadership role with respect
to FOIA, that is disappointing, if not downright alarming,
considering what the purposes of FOIA is all about. If Justice
makes this kind of argument, why should anyone be shocked about
the lack of transparency claims against the Government? As a
Senator, I have had my own challenges in obtaining information
not only from this administration but a lot of administrations
since I have been in the Senate. And, again, I only hold this
administration to a higher standard because of the standard set
by themselves that on January 21, 2009, they were going to be
the most transparent in the history of our country. If it is
this difficult for a Senator, I can only imagine how much more
difficult and frustrating it might be for a private citizen.
I will note that recently the House of Representatives
unanimously passed bipartisan FOIA legislation. I think that is
a real accomplishment in the politicized world that Washington
is today. I understand, Mr. Chairman, that our staffs are
reviewing this legislation and hearing from those in the
transparency community. Overall, the reception seems to be
positive, but there are some questions that have been raised
regarding, for example, the technology used in handling
requests. We will continue to examine this issue and others,
but here is a bill that we should take seriously and examine
closely.
There is a lot of room for improvement, and I look forward
to asking our witnesses today about some of these concerns I
have raised before--or that I have raised today.
Thank you.
Chairman Leahy. And our staffs have been looking at it, and
it is an area where I believe we can find common ground and
should move forward with it.
Senator Grassley. Good.
Chairman Leahy. Melanie Pustay, who is the Director of the
Office of Information Policy at the Department of Justice, has
statutory responsibility for directing agency compliance with
the Freedom of Information Act. Before becoming the office's
Director, she served for 8 years as Deputy Director, so a great
deal of experience there.
Ms. Pustay, please go ahead.
STATEMENT OF MELANIE ANN PUSTAY, DIRECTOR, OFFICE OF
INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Pustay. Good morning, Chairman Leahy, Ranking Member
Grassley, and Members of the Committee. I am pleased to be here
today to discuss the Department of Justice's ongoing efforts to
assist agencies in improving their administration of the FOIA.
Increasing use of technology to improve the public's access to
information has been a key part of our work.
Over the past 5 years, we have seen agencies embrace
technology in a wide variety of ways. Agencies recognize the
benefits of IT and are using ever more sophisticated technology
to improve access to information.
One area that we have found technology to be particularly
beneficial is the use of tools and applications that assist
with the core tasks of processing FOIA requests, such as
technology that assists in the search and review of records.
Automating those functions has the potential to improve
timeliness in responding to requests.
OIP has hosted seminars and given presentations to our FOIA
IT Working Group to enhance awareness of the possibilities that
these technologies hold. Last year, 68 agencies reported using
some type of advanced technology to increase their efficiency.
Now, in addition, agencies are using technology in ways to
improve the public's ability to interact with the agency.
Making more information available online is yet another way
that agencies are increasing transparency.
Given that proactive disclosures can satisfy public demand
for information without the need to ever file a FOIA request,
OIP has focused on this topic in both our written guidance and
in our training for agencies. And agencies have embraced
proactive disclosures by posting a wide variety of material
that is of high public interest, and they have made their
websites more useful to the public.
Finally, FOIA.gov continues to revolutionize the way in
which FOIA data is itself made available to the public. The
explanatory videos that we have embedded in that site received
more than 2.5 million visitors.
So as you can see, FOIA is indeed adapting to the Digital
Age, yet there is still more that we can do. In the next 2
years, the administration has committed to five initiatives
that are all designed to modernize the FOIA. As part of the
administration's second Open Government National Action Plan,
we have committed to improving the customer service experience
by establishing a consolidated online FOIA portal that will not
only allow for the making of requests to all agencies from a
single website but will also include additional tools to help
improve the customer experience.
Second, to streamline and simplify the request-making
process, OIP will be leading an interagency team in developing
a common FOIA regulation that is applicable to all agencies but
still retains flexibility for agency-specific requirements.
Third, as agencies have been working to improve their FOIA
practices these past 5 years, OIP is organizing a series of
targeted Best Practices Workshops where agencies can share
lessons learned in implementing the Attorney General's FOIA
Guidelines.
Fourth, to ensure that employees have a proper
understanding of the FOIA, OIP is creating a suite of e-
learning FOIA training resources which will target discrete
groups of employees, from the newly arrived intern to the
senior executive.
And last, OIP will be supporting and participating in a
FOIA Advisory Committee that is designed to foster dialogue
between agencies and the requester community.
Now, the Department of Justice will also be continuing our
work in encouraging and overseeing compliance with the law.
Last year, for example, we issued guidance addressing a number
of ways that agencies can improve their communication with
requesters. We continue to conduct assessments of agency
progress using a wide variety of milestones, including those
that target technology use. As agency implementation of the
Attorney General FOIA Guidelines has matured, OIP has been
continually refining those milestones. We have engaged with the
open government community in this effort, and we greatly
appreciate the ideas and suggestions we have gotten from them.
This past Fiscal Year marks another year in which the
Government received record high numbers of FOIA requests. In
response, agencies were able to increase the total number of
requests processed. Out of the 99 agencies subject to the FOIA,
73 reported having a backlog of 100 requests or less, with 29
reporting no backlog at all.
But given the importance of reducing significant agency
backlogs, OIP required those agencies to provide a plan for
reducing their backlog in the year ahead.
So, in closing, the Department of Justice looks forward to
working together with the Committee on matters pertaining to
government-wide FOIA administration. We have accomplished a lot
over these last 5 years, but OIP will continue to work
diligently to help agencies achieve even greater transparency
in the years ahead. Increasing use of technology will be a key
part of those efforts.
Thank you.
[The prepared statement of Ms. Pustay appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
And before we go to questions, we want to hear from Miriam
Nisbet. She is the founding Director of the Office of
Government Information Services at the National Archives and
Records Administration. Before assuming that, she served as
Director of the Information Society Division for the United
Nations Educational, Scientific, and Cultural Organization in
Paris. So I guess I should say, ``Bienvenue.''
Ms. Nisbet. Merci.
Chairman Leahy. De rien. Please go ahead.
STATEMENT OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT
INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION, WASHINGTON, DC
Ms. Nisbet. Bonjour, Mr. Chairman, Ranking Member Grassley,
Members of the Committee. Thank you for the opportunity to
appear again before you leading up to Sunshine Week.
Since last year's Sunshine Week, we at OGIS have been
working hard to carry out our mission to review agencies'
policies, procedures, and compliance, and to provide mediation
services to resolve FOIA disputes. In fact, the OGIS mediation
caseload was up 40 percent in Fiscal Year 2013, which is a
testament to the innovative approach of resolving FOIA disputes
that Congress created through OGIS.
We have also worked closely with Government colleagues to
contribute to five ambitious efforts to modernize FOIA through
the administration's second Open Government National Action
Plan. All of these commitments embrace using technology in some
way to improve FOIA processes.
For example, the administration committed to launching a
consolidated portal to give requesters a single site across
Government to file their requests. Ms. Pustay talked about that
also.
I would note that the existing and expanded FOIAonline
system--in which our parent agency, the National Archives, is a
partner and which was the subject of an OGIS recommendation in
2012--will certainly inform that process.
Additionally, NARA will support the new FOIA Modernization
Advisory Committee, made up of Government and non-Government
FOIA experts who will recommend improvements, starting with
meetings this spring--if spring ever comes.
More specifically to the work of OGIS, the FOIA, as you
know, directs my office to recommend policy changes to Congress
and the President to improve the FOIA process. Last year, we
recommended four ways to do that, and our efforts with all four
recommendations continue today.
We are making progress on two 2013 recommendations that we
intend to carry forward: one is examining FOIA fees, the other
reviewing the process for requesting immigration-related
records.
A third recommendation also long term involves working with
agencies to implement dispute resolution for FOIA disputes.
OGIS has begun working with several agencies to identify
ways to prevent and resolve disputes as well as avoid
litigation. Our final recommendation last year was to encourage
agencies to share our reminder that FOIA is everyone's
responsibility, which we were very glad to see some agencies
do.
Beyond those and other efforts OGIS is continuing to carry
out, there are additional low- or no-cost ways to address
technological issues and improve the FOIA process generally. At
any given time, agencies across the Government are working to
update or purchase new information technology infrastructure.
We recommend that when procuring new technology, upgrading
existing technology, or even creating a new large agency
database, program officers consult with their records managers
and FOIA professionals to best determine how the records will
be managed, how the agency might conduct FOIA searches, and
ideally how the agency might proactively disclose the
information or data. This collaboration should extend to
contracted information technology services so that when a FOIA
request is received, neither agencies nor requesters are
burdened with out-of-contract costs.
Additionally, while technology can theoretically make it
easier to maintain information, it can sometimes pose a
challenge in retrieving information in response to a FOIA
request. FOIA professionals must be able to rely upon their
more technologically savvy colleagues to help unleash
information held in databases or other systems.
There are also low-tech, low-cost, or no-cost ways that can
make a difference to improve customer service. For example, I
have sent a letter to the President asking the White House to
issue a memorandum to general counsels and chief FOIA officers
that focuses on exemplary customer service for a better FOIA
process, with particular attention to the importance of
appropriate dispute resolution through FOIA public liaisons and
through working with OGIS.
Another way we can improve customer satisfaction is by
working with agencies to ensure they provide information about
the estimated date of completion for FOIA requests. This issue
remains a challenge to some agencies, and OGIS will work
closely with OIP on that.
I appreciate the opportunity to appear before this
Committee, and I thank you for the support you have shown to
the Office of Government Information Services.
[The prepared statement of Ms. Nisbet appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much for that.
Let me ask a couple questions. Ms. Pustay, this year marks,
as I said, the fifth anniversary of the Attorney General's FOIA
Guidelines. I commend the guidelines. As I said before, they
restore the presumption of openness. But I worry that they get
undermined by the growing use of FOIA exemptions. I referenced
this in my opening statement, the recent report by
OpenTheGovernment.org. It said that Federal agencies used FOIA
Exemption 5 to withhold information more than 79,000 times in
2012, a 41-percent increase.
Why are they relying so extensively on Exemption 5? And
those are the numbers for 2012. What happened in 2013? Is your
microphone on? Thank you.
Ms. Pustay. There are a couple of things I want to point
out regarding the usefulness of looking at a statistic such as
that.
First of all, the use of exemptions is going to necessarily
fluctuate from year to year. We have had years in the past
where the number of citations to Exemption 5 went down.
Sometimes it goes up. So it does fluctuate.
That is also going to be very much driven by the types of
requests that agencies receive. Agencies obviously have no
control over what types of records are asked for.
Third, the use of Exemption 5 this past year, over 85
percent of the uses of Exemption 5 are attributed to two
agencies, and last year, when we looked at the use of Exemption
5, one of those agencies overwhelmingly had been processing
records that were subject to protection under the attorney work
product privilege, which does not----
Chairman Leahy. What were the two agencies?
Ms. Pustay. DHS and EEOC. Those are the two agencies that
have used Exemption 5 the most. But both of those agencies use
Exemption 5 to protect attorney work product and attorney-
client information, which is not as susceptible to
discretionary release, like the deliberative process privilege.
So these are all reasons why we would--and, last, another
important thing to keep in mind is that an agency might be
processing a record and releasing everything on a page other
than one sentence. But if they use Exemption 5 to protect one
sentence, they are going to be citing Exemption 5, and that
will count as the use of the exemption. So the number of
citations does not tell you how much is being released or how
much is being withheld.
And for all those reasons, what we have asked agencies to
do in their Chief FOIA Officer Reports is give examples of
discretionary releases so that there is a public accountability
for actual increases in releases.
Chairman Leahy. But the Attorney General's Guidelines say
they will not defend an agency's decision to deny a FOIA
request unless it would cause a foreseeable harm.
Ms. Pustay. Correct.
Chairman Leahy. But only three of the 15 agencies that
process the most FOIA requests have promulgated regulations to
adopt this. Is there foot dragging going on here? Or is this
just----
Ms. Pustay. No; the agencies across the Government have
embraced the Attorney General's FOIA Guidelines, as are
demonstrated each and every year through the detailed Chief
FOIA Officer Reports that we ask every agency to provide.
Regulations were not required to implement the Attorney
General's FOIA Guidelines, and we have a very robust
accountability for their implementation through the Chief FOIA
Officer Reports, which detail a wide variety of steps that
agencies are taking specifically to advance the presumption of
openness, but also to use technology and to improve efficiency.
They are all addressed in the Chief FOIA Officer Reports.
Chairman Leahy. Let me go to Director Nisbet. You mentioned
if spring ever comes. I want you to know that in Vermont, we
will have 4 or 5 inches of snow on a day, and usually the news
will say we are going to have a ``dusting'' tomorrow, no more
than 4 of 5 inches. They did announce that tomorrow it will be
a moderate to heavier snow, 18 to 20 inches. And it is
conceivable schools could open an hour late.
[Laughter.]
Chairman Leahy. We could open on time if we had anywhere
near as much equipment as they have here in this area to clear
snow, but we do not. So we do the best we can.
To be serious--I was serious about that, but to be serious,
we are considering a legislative proposal to make OGIS more
independent by allowing OGIS to make recommendations on
improving the FOIA process and make those recommendations
directly to Congress. Do you support that proposal?
Ms. Nisbet. Senator Leahy, the administration has not yet
taken a position on H.R. 1211, and I am not able to comment. I
will say I really always appreciate the attention to OGIS, and
I will be interested to see what happens.
Chairman Leahy. I understand the reason you have to be
cautious, but OGIS made nine recommendations to Congress--five
in 2012, four in 2013. But it seemed that they were delayed for
so long because of either OMB or the Department of Justice
looking at it. So I hope that we can reach a point where the
recommendations can be made directly to us.
We also had a Government Accountability Office study that
found last year that you do not have adequate staffing and
resources to perform the dual mission of reviewing agency FOIA
compliance and also providing mediation services, which can be
very essential to getting something done. So I will ask you
this question: Does OGIS have adequate staff and resources to
carry out its work?
Ms. Nisbet. Mr. Chairman, let me answer that in a couple of
ways. A number of commenters, I think even before OGIS opened
its doors, noted that with the broad mission that we have, with
the dual mission that we have to review and to provide
mediation services, either one of those missions would be quite
a challenge for the office that we have. We have tried to do as
best we can with that. We have been challenged at times, and as
I mentioned, our caseload in mediation is up significantly from
the year before.
With that having been said, we are looking at ways to take
the GAO recommendations into effect, and I am pleased to tell
you that our agency has approved hiring three additional staff
members for OGIS in large part to work on the review part of
our mission, and we are very much looking forward to getting
those people on board.
Chairman Leahy. Well, I am not restrained by OMB or
anything else, but I will say I believe you need more staff to
carry this out, because I think--again, I do not care whether
you have a Republican or Democratic administration. To be able
to move quickly and effectively on FOIA requests, knowing that
some are here for the sake of doing it, but most are very
reasonable, to move quickly and thoroughly on them is extremely
important to democracy in this country.
Senator Grassley had to step out, and he suggested we go
next to Senator Blumenthal. And I will say, as I have said
before, I think we are lucky that Senator Blumenthal is here.
Senator Blumenthal. Thank you, Mr. Chairman. Thank you very
much. And I appreciate your having this hearing, which I think
is profoundly important, and I recognize your leadership in the
area of open government and freedom of information. And I
appreciate this panel being here today.
Ms. Pustay, you used the word earlier ``robust'' to refer
to the initiatives going forward. You know, I think it is hard
to square the term ``robust'' with the frustration and
sometimes anger that people feel, we hear as their
representatives. And I wonder what additional steps or what
kinds of recommendations you would make to this Committee,
whether it is the legislation that has been proposed or other
measures, to make this process work better and convince people
that their Government is, in fact, open and complying with the
law.
Ms. Pustay. Well, respectfully I disagree with the premise
in that I think that the agencies are robustly--I do not have a
problem using the word that they are robustly implementing the
law. This is not to say that there are not further improvements
that can be made. But we have seen across the Government record
high numbers of incoming FOIA requests, and yet agencies
processed more FOIA requests last year than ever before. In the
past 5 years, we have agencies releasing records, in full or in
part, in over 90 percent of cases. We have many, many examples
of agencies putting records up on their websites to help make
information available to the public without the need for a FOIA
request.
So we have seen a lot of concrete steps that agencies have
taken to improve access to information. But we do think that
there are further steps that we can take, and one of those--I
detailed five of them, but just even to focus a little bit on
one of the five that I think has a lot of potential to help
both agencies and requesters is our project to create a uniform
or common FOIA regulation.
The idea there would be to streamline and standardize some
of the core procedures, procedural parts of administering the
FOIA, making them the same across agencies to the extent we
can. That I think would have a direct day-to-day impact on the
common FOIA requester who would find it much easier to know
there is the same time period for filing an appeal, for
example, at every single one of the 99 agencies.
Senator Blumenthal. And why does that not exist now, as you
put it, standardized and common FOIA regulations----
Ms. Pustay. Right. Yes, this--it is an idea--it is a new
idea to have a common one. Right now we have 99 agencies with
99 sets of FOIA regulations. So one of our initiatives is to
explore the legal feasibility, first and foremost, of doing
that, and then working together as an interagency team and also
getting comments from the public about the content of those.
Senator Blumenthal. And who is responsible for that
project?
Ms. Pustay. So my office is leading that project, but we
are having input from across the Government, the requester
community, certainly my friend Miriam at OGIS. We are all going
to be part of a team to do this, to have a thoughtful study and
analysis of how best to do it.
Senator Blumenthal. What is your timeline for actually
implementing a standardized common regulation?
Ms. Pustay. We are going to start the process this spring,
so we have been talking a lot about spring in this hearing, so
very soon we are going to start the process of actually having
meetings and delving into the different mechanics of doing so.
But it is a 1- or 2-year project.
Senator Blumenthal. Well, I would accept, with all due
respect, the use of the word ``robust'' if that standard
regulation were already in place, similarly with improving the
agencies' internal processes.
Ms. Pustay. Right.
Senator Blumenthal. Who is in charge of that project?
Ms. Pustay. Well, so that internal--OIP is leading an
effort to create opportunities for agencies to share their best
practices. Across the Government we have many examples of
agencies doing some really terrific things, for example, in
technology or taking steps that have really helped them reduce
their backlogs. There is a wide variety of issues connected
with FOIA administration, and with 99 agencies we have stars
that we can identify for every one of those topics.
And so the idea there is to have a group of agencies that
have done very well on a particular topic share their
experiences, their tips, their strategies for success with
everyone else. Then we will create written documentation of
those strategies, make those available on line.
The whole idea is to have some synergy and have agencies be
able to learn from one another.
Senator Blumenthal. And I very much applaud and welcome
those kinds of initiatives. My suggestion is that the sooner
that you implement them, because the only real obstacle to
implementing them is the resources that you have and the
organizational skills of the people trying to achieve them, the
more likely it is you will avoid legislation that will tell you
and give you dates about what to do.
Ms. Pustay. Right. We have already announced on our website
the start of these series of meetings. We have lots of agencies
that have already indicated to us that they are really excited
and interested to serve on panels. We have got more suggestions
for topics than we have got months in the year, so I think this
will be a really--I do not want to keep using the word
``robust,'' but I think this will be a very energetic project.
Let me say it that way.
Senator Blumenthal. Well, you questioned the premise of my
question, which is that the procedures were not robust. But you
did not question the premise, the more important premise that
the public is frustrated and unhappy with the pace of responses
and the amount of information provided. I think when you
mention freedom of information to the ordinary citizen--and, by
the way, it is true of State government as well as Federal--
there is a common reaction for anybody who has any experience
with it that it does not function well.
Ms. Pustay. In addition to processing more requests across
the Government this past year, the agencies improved processing
time. So I guess I do have a response to that characterization.
We have been able to reduce the processing time for simple-
track FOIA requests.
There is no doubt, though, that there is an incredible
interest by the public in getting access to information, and we
have over 700,000 requests filed each year. So really we are
fortunate, I think, in the United States that the public really
embraces the use of the Freedom of Information Act. But to help
agencies increase their capacity to deal with that high volume
of requests, that is where we think technology really holds a
lot of great potential, and particularly the more sophisticated
technology tools that help with processing. To the extent
manual processes can be changed over into automated processes,
the actual time per request can be reduced, that to me has the
most potential to increase timeliness across the board.
Senator Blumenthal. And I would second your comment about
that we should welcome the public's interest in what the
Government does. At a time when we kind of moan about the
cynicism and distrust of Government, obviously some of these
requests for information are motivated by that feeling of doubt
or questioning what Government is doing. But at the same time,
a lot of it is simple curiosity and interest, which we should
welcome and support and aid and abet.
Ms. Pustay. Right.
Senator Blumenthal. So the better and quicker that we try
to provide information, the better democracy works, which is
just kind of a less articulate statement than many provide
about the reason that we have freedom of information laws.
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you, Senator. You have been a
strong supporter of the Freedom of Information Act.
And as I said at the beginning, Senator Grassley has joined
with us on a number of the pieces of legislation to make FOIA
even more effective, and I yield to Senator Grassley.
Senator Grassley. Thank you.
There are not a lot of Members here today, but I hope you
will get a view from all of us in a bipartisan way that we are
very serious about making this FOIA work and that withholding
information is not justified.
Director Pustay, you heard me mention in my opening
statement about the CREW case. Last year you could not comment
on it because I suppose at that time it was pending. Now that
the case has been decided, I would like to ask you some
questions about the Office of Information Policy role in that
case.
The bottom line--and then I will follow it up with
specifics--whether or not you had a seat at the table so that
you or your office was able to provide insight or assistance in
those handling the case. Were you involved in preparing a brief
or, if not going that far, in crafting an argument? Or were you
consulted at all?
Ms. Pustay. Senator Grassley, because you are still asking
me questions connected with litigation, even though it is not
ongoing, it is not appropriate for me to go behind the scenes
and talk about it. I would refer you to the briefs that we
filed in that litigation for the statement, the position that
the Government took.
But what I can tell you is that----
Senator Grassley. Before you go on, what is ongoing when
the D.C. Circuit has made a decision?
Ms. Pustay. No, I did not say--I know it is not ongoing
anymore, but it is not appropriate for me to go behind the
scenes to talk about litigation procedures or strategies. The
position that the Government took is in our briefs that are
obviously publicly available.
Senator Grassley. Yes, but since you are such a key player
in this whole thing, if they do not seek your advice, we ought
to know that. Why wouldn't they seek your advice? If they did
not, you can just say no, they did not seek your advice.
Ms. Pustay. As I said, it is just not appropriate for me to
talk about behind-the-scenes discussions that go on at the
Department of Justice in connection with litigation.
Senator Grassley. Well, I am not a lawyer here, but can I
ask the lawyers on the staff whether that is an appropriate
thing once a decision has been made?
Ms. Pustay. The attorney work product privilege extends
beyond the conclusion of the litigation. I can tell you that.
Senator Grassley. Okay. Go ahead and tell me whatever you
want to tell me. I do not think it will be of much value, but
go ahead.
Ms. Pustay. What I thought might be helpful to you, Senator
Grassley, is to know that we have done a number of steps, taken
a number of steps since the Attorney General's FOIA Guidelines
were issued to help agencies improve their experience with--to
help agencies and requesters interact more productively
together. And, in particular, we have issued now over the
course of the past several years two guidance articles
specifically on the importance of good communication with
requesters. And in doing so, we have taken into account and
gotten a lot of suggestions from the requester community
through requester roundtables and just regular outreach that I
have with the open government groups. And I have taken that
information and put it into guidance to agencies, all designed
to help improve the way agencies interact with requesters. I
think that is a very good example of how my office, through our
guidance function, is improving the process.
Senator Grassley. I want to ask you another question. Last
year I pointed out my concerns regarding increased litigation
on FOIA. Specifically, we had this 2012 study finding that
there were more court complaints from requesters to get
documents under the Freedom of Information Act during President
Obama's first term as compared to Bush's second term. It would
seem to me that the Government is falling short of achieving
unprecedented transparency. This problem highlights questions
surrounding use of the foreseeable harm standard. Attorney
General Holder has instructed agencies to apply this standard
in litigation and agency decisionmaking. Doing so encourages
discretionary disclosures wherever possible.
So my question: During this administration has the Justice
Department ever applied the foreseeable harm standard and
decided not to defend an agency in a Freedom of Information Act
lawsuit?
Ms. Pustay. The Department of Justice, there have been--
yes. The answer to your question is yes. Through the review
process that our litigators go through with the agencies when a
FOIA lawsuit is filed, there have definitely been situations
where information was released as a result of applying the
Attorney General's Guidelines, and examples of those are
actually contained in published court opinions.
Senator Grassley. Okay. Maybe you can give us--because the
next question, I was going to ask you to provide a list of
those cases. You might just give us the citations so we can get
to them.
Ms. Pustay. Certainly. I will be happy to do that.
Senator Grassley. Okay.
[The information referred to appears as a submission for
the record.]
Senator Grassley. Then I am going to go to Ms. Nisbet. Your
testimony notes that the administration's goal of simplifying
the process for requesters and the agency professionals,
specifically improving the online process for making and
tracking freedom of information requests. I know that the
National Archives and other agencies participate in FOIAonline
portal, so I would like to hear from you about what we should
consider when we examine this matter. So this question: Given
that agencies vary in size and operation, how can a single
online portal be created that avoids a one-size-fits-all
approach? And on this point, has a failure to accommodate the
differences between agencies caused any agency to terminate its
use of FOIAonline?
Before you answer, I understand that the Treasury
Department no longer uses FOIAonline portal, so I think it is
helpful that we carefully consider how to establish online
systems that are being utilized by multiple agencies of
different sizes.
Can you answer that for me?
Ms. Nisbet. Yes, Senator Grassley. I hope I can answer all
of those questions.
FOIAonline launched October 1, 2012, so it has been
operating for about a year and a half. There are currently
seven agencies that are partners in it. The National Archives
and Records Administration is one, and we would certainly be an
example of one of the small agencies. We are quite small
compared to some of the others--Department of Commerce, Customs
and Border Protection has recently joined, and the Department
of the Navy joined just this February, so just barely more than
a month ago. And the goal is to have a shared service. It is to
accommodate both small agencies and large agencies, and we have
not had--we, the partnership of FOIAonline, have not discovered
that there has been an issue doing that. In other words,
whether a small agency or a large agency, the system seems to
be working quite well. We have heard good feedback from
requesters, and we think it is going to be a good model for
looking at either continuing to expand it, which we hope is
going to happen, or to the next version that comes along.
Treasury did belong for about a year. It was, in fact,
creating its own system, but it was not up and running at the
time that FOIAonline got up and running, and so Treasury joined
during such time as it was able to take advantage of that
multiagency portal until it was ready to launch its own
expanded FOIA request system.
Senator Grassley. I have one more question. I am going to
ask you to answer in writing.
Mr. Chairman, I would like to ask Ms. Nisbet to take a
message back to the Archivist. I am continuing to look closely
at the National Archives Inspector General being kept on
administrative leave for over 17 months. That is almost
$200,000 of taxpayers' money that has been wasted while we are
waiting to resolve problems there. I think it severely harms
the credibility of the National Archives and needs to be
resolved. I would appreciate it if you would tell him that.
Ms. Nisbet. Yes, sir, I will.
Senator Grassley. Thank you.
[The information referred to appears as a submission for
the record.]
Senator Grassley. Thanks to both of you for answering my
questions.
Senator Franken [presiding]. Thank you, Senator Grassley.
Director Pustay, thank you for testifying this morning. I
am sorry I got here late.
The Center for Effective Government just came out with a
report grading the 15 agencies that receive by far the most
FOIA requests, over 90 percent of all information requests that
the Federal Government receives. None of the 15 agencies
received an A and 7 got an F.
I am particularly concerned about the long delays that
people must undergo when they wait for records, notably
including requests from groups that are seeking information to
make sure that Federal contractors are complying with important
labor laws. It seems like reform is necessary.
What are some of the biggest problems that agencies face as
they work to comply with FOIA? And what can we do to resolve
those problems?
Ms. Pustay. The primary reasons that agencies give for
having backlogs are the increases in the number of requests
coming in, and as I have said, for the past 5 years we have had
a steadily growing number of requests for information coming
into the Government, so people--there are more requests to
handle. And although many agencies are able to increase the
number of requests they process to meet that incoming demand,
the second thing that has been happening is that the requests
are more complex than they were before. And I think in some
ways, as agencies post more information online, what comes in
as a request then tends to be a more complicated matter.
So putting those two things together, in my opinion the
best way or one of the best ways we would have to really
actually tackle that is the topic of this very hearing--
technology. I am very hopeful that the more advanced,
sophisticated technology tools that can actually help agencies
search for records and duplicate records and sort records, all
the things that many times are done manually, if they can be
automated to increase timeliness, that in turn will allow the
agencies to get back to the requesters in a faster way. So that
to me is the best approach that we have to that issue.
Senator Franken. Well, how long will that take to
implement?
Ms. Pustay. As I said in my opening statement, last year 68
agencies reported using advanced technology tools. So it has
been--when you look back just a few years in FOIA
administration, when we were using much more basic technology,
there have been real leaps and bounds forward. And agencies
obviously really embrace and appreciate the use of these more
sophisticated technology tools. They are also always looking
for efficiencies.
One of the focuses of the Attorney General's FOIA
Guidelines is to ask agencies every year to report on what are
they doing to increase their efficiencies. Every agency is
going to have different reasons for delays or different reasons
where--different choke points in their process. And looking
every year at efficiencies and finding ways to make your
process more efficient and more smooth is another key aspect of
what we have been doing under the Attorney General guidelines.
And those are improvements that have been being made so far for
5 years under the guidelines and that we will continue to
encourage going forward.
Senator Franken. Well, if half the agencies are getting an
F and, as you said, most of the agencies seem to be using this
advanced technology, I think there is something systemically
wrong here.
When you came to testify before the Committee last year, we
talked about specific agencies and specifically the Department
of Justice working to update their FOIA regulations to be
consistent with the Open Government Act, which was passed 6
years ago now and the Attorney General's March 2009 memo
setting out the administration's policy on FOIA.
At the time you said the Department was still working on
its own regulations, which it hoped would serve as a model for
other agencies. This model for other agencies, why is the
Department still not done with it? And what is the status of
these regulations?
Ms. Pustay. I can report that the regulations are now
undergoing a regulatory review process that is----
Senator Franken. The regulations are undergoing a
regulatory review process. Okay.
Ms. Pustay. Yes, yes. It is required by Executive Order
12866, to really give you the details of it. So there is a
specific process. We are at the tail end of that process, and
it is now in this interagency review stage. So we really are
optimistic that they will be ready soon.
I do want to, though, re-emphasize to you--I know we talked
about this before--the Attorney General's Guidelines did not
require implementing regulations. We have been working steadily
and very aggressively since they were issued in 2009 to
implement those guidelines, not just at DOJ but across the
Government. No regulatory changes were needed. We have required
agencies to report on their progress in implementing the
guidelines through their Chief FOIA Officer Reports. So we have
a very full record of not just what DOJ has been doing for the
past 5 years under the guidelines but what all agencies have
been doing to increase transparency.
Senator Franken. Okay. Well, hopefully the next report you
will be getting better grades, but thank you both for your
testimony. You are excused, and I would like to invite the
witnesses on our second panel to come forward.
[Pause.]
Senator Franken. Well, first of all, welcome and thank you
for taking time from your busy schedules to be with us today.
Our first witness is Amy Bennett, the assistant director at
OpenTheGovernment.org. OpenTheGovernment.org is a coalition of
80-plus organizations seeking to make the Federal Government
more open and accountable.
Our next witness is Dr. David Cuillier, director and
associate professor of the University of Arizona School of
Journalism. Dr. Cuillier is also the president of the Society
of Professional Journalists, the largest organization of
journalists in the United States.
Our final witness is Daniel J. Metcalfe. He is the adjunct
professor and executive director of the Collaboration on
Government Secrecy at the Washington College of Law at American
University. And he is the former Director of the Department of
Justice Office of Information and Privacy.
I would like to thank you all for joining us. I would like
to give you each about 5 minutes to make your opening
statements. Your complete written testimonies will be included
in the record. Ms. Bennett, please go ahead.
STATEMENT OF AMY BENNETT, ASSISTANT DIRECTOR,
OPENTHEGOVERNMENT.ORG, WASHINGTON, DC
Ms. Bennett. Thank you, Chairman Leahy, Ranking Member
Grassley, and Members of the Committee, for the opportunity to
speak today about reinvigorating the Freedom of Information
Act----
Senator Franken. I think your mic might not be on.
Ms. Bennett. There we go. So thank you for the opportunity
to speak about reinvigorating the Freedom of Information Act
and for your unwavering commitment to protecting and
strengthening the public's right to know. My name is Amy
Bennett, and I am the assistant director of
OpenTheGovernment.org, a coalition of more than 80
organizations dedicated to openness and accountability.
Currently the FOIA is anything but an efficient tool and
effective tool that the public can use to get timely access to
Government records. Members of the public must contend with
delays, mind-boggling technical barriers, and a tradition of
bureaucratic resistance to disclosure because agency officials
believe information in agency records belongs to the agency,
not the people.
There is no doubt that technology has been extremely useful
in speeding FOIA processing while also making it easier for the
public to use and re-use Government information.
Technology is not the entire answer, however, and we hope
that the Committee will approve amendments to the FOIA
addressing two of the issues discussed below and in my written
testimony.
Foremost among these, the open government community would
like to see Congress put tighter boundaries around the
Government's overuse of FOIA's Exemption 5 or, as many
requesters like to refer to it, the ``We don't want to give it
to you'' exemption. Exemption 5 is intended to protect the
Government's deliberative process, among other things, and was
intended to have--as are all FOIA Exemptions--narrow
application. Over time, Federal agencies have expanded the
scope of Exemption 5 to the point that it covers practically
anything that is not a final version of a document. In one
recent egregious example, the Central Intelligence Agency
denied a request from the National Security Archive for a copy
of the CIA's internal history of the 1961 Bay of Pigs disaster.
The request was denied despite the fact that the draft is
connected to no policy decision by the CIA and it is related to
events that occurred more than 50 years ago.
Exemption 5 has also recently been invoked to flatly deny
the public access to opinions by the Office of Legal Counsel.
In recent years, we have seen the Government rely on these
opinions to authorize a number of programs that go well beyond
the plain reading of the law.
Secret interpretations of the law prevent the public from
having fully informed debates about Government's policies and
erode the public's trust in the executive branch and in its
decisions.
In terms of needed reforms to Exemption 5, we can draw two
lessons from these examples. One, Exemption 5 needs a public
interest balancing test. If the Government were not convinced
that the requested documents would advance the public interest,
a requester would still have the opportunity to ask a court to
independently weigh the Government's needs in invoking the
privilege against the needs of the requester. Two, there needs
to be a time limit. Currently, a President's records are only
protected from release for 12 years after he leaves office. We
should not accord more secrecy to agency business than we
accord the President of the United States.
The next critical issue relates to the Office of Government
Information Services. The open government community strongly
supports OGIS, and we appreciate this Committee's leadership in
creating the office. You will not be surprised, however, when I
tell you OGIS continues to struggle to meet its dual roles as
FOIA mediator and as the office charged with reviewing agency
FOIA compliance in recommending changes to Congress and the
President.
The first limitation faced by OGIS should be abundantly
clear to this Committee thanks to Senator Grassley's sharp
questioning during last year's FOIA oversight hearing. It
should not take a threat by a Senator to drive down to the
Office of Management and Budget to make sure that OGIS'
recommendations are delivered in a timely fashion. OGIS needs
direct reporting authority so it can give you and the President
opinions and recommendations based on the problems that they
see.
The second limitation is the age-old problem of resources.
Right now the office consists of a staff of seven. That is
seven people to help each agency FOIA office and the hundreds
of thousands of FOIA requesters. They need new resources to
help promote and support the office's work. We believe that
Congress should approve at least two new positions--a Director
of Enforcement and a Director of Operations--to further
strengthen OGIS' ability to carry out its mission.
The final limitation currently faced by OGIS that I will
discuss today is its lack of authority to compel agencies to
participate in the mediation process. Currently, OGIS and a
requester that seeks OGIS' assistance must rely on the good
will of an agency involved in a dispute. For OGIS to serve all
requesters who seek mediation service, Congress should require
agencies to cooperate with OGIS and to provide information if
requested.
OpenTheGovernment.org and our partners are eager to work
with you to draft a strong bill that makes FOIA work better for
the public. In addition to the other issues discussed in my
written testimony, I am submitting a much longer list of
possible reforms that the open government community would like
to see enacted.
We also think there are several good ideas in the recently
passed House bill, and included with my testimony is a letter
signed by more than 25 organizations endorsing that bill and
calling attention to particularly good provisions.
Thank you for the opportunity to speak about this critical
issue, and I look forward to answering any of your questions.
[The prepared statement of Ms. Bennett appears as a
submission for the record.]
Senator Franken. Thank you, Ms. Bennett.
Dr. Cuillier.
STATEMENT OF DAVID CUILLIER, PH.D., DIRECTOR AND ASSOCIATE
PROFESSOR, THE UNIVERSITY OF ARIZONA SCHOOL OF JOURNALISM, AND
PRESIDENT, SOCIETY FOR PROFESSIONAL JOURNALISTS, ON BEHALF OF
THE SUNSHINE IN GOVERNMENT INITIATIVE, TUCSON, ARIZONA
Professor Cuillier. Thank you, Senator Franken.
I want to thank you for the opportunity to testify today on
behalf of the Society of Professional Journalists and the
Sunshine in Government Initiative. As you know, we are
passionate about access to Government information. FOIA helps
journalists reveal corruption, expose problems in society,
empower citizens. Recently, journalists have used FOIA to
expose dangers of crime aboard cruise ships. They have used
FOIA to discover conflicts of interest among Federal Reserve
Bank presidents. They have used FOIA to show how drug companies
influence what appears on warning labels. FOIA makes a
difference. It saves lives.
But I am here today to say that FOIA is terribly, terribly
broken, and it needs more than just reinvigoration. It really
needs resuscitation. You all have worked hard to improve FOIA--
the 2007 Open Government Act, creation of OGIs--and for that we
thank you. All great. But on the ground today, people's real
access to information is actually more and more restricted than
ever. For example, this year the U.S. dropped 13 spots on the
world ranking of press freedom, down to 46th place behind such
countries as Romania, El Salvador, and Botswana. When you
compare FOIA laws around the world, the statutes among the 90
or so countries that have them, the U.S. now ranks--and get
this--44th. We are nearly in the second half in FOIA statute
strength in the world. We have a weaker FOIA law than Uganda,
Kyrgyzstan, Mexico, and Russia.
Well, this trend is supported by other recent research. The
Associated Press found that use of exemptions have increased 22
percent from 2011 to 2012. A study out of Penn State showed
that agencies have used privacy exemptions to deny records more
often under the Obama administration than the Bush
administration. In surveys and anecdotally, journalists report
increased delays, excessive fees, and agencies frankly gaming
the system. Journalists are angry, they are livid, and I have
never seen them as angry as they are now.
You may recall, for example, that chemical contamination of
drinking water a few months ago in West Virginia affecting
30,000 residents. There was a reporter down there, Ken Ward,
Jr. He has been stonewalled by the EPA and CDC. He requested
records regarding health risks to pregnant women, but last week
the CDC denied his petition for expedited review. They told him
there was no urgent need to inform the public about the matter.
Another reporter told me last week about a data request he
initiated a couple years ago with Immigration and Customs
Enforcement. After resistance and delays, Immigration referred
the matter to OGIS for mediation. But then, after more delay,
they decided not to go through mediation. Then they said too
much time had passed and the reporter could not appeal anymore,
so case closed. Now the reporter has to submit another request
and start all over. It is that kind of behavior that we see
that is causing a lot of problems. Agencies are getting more
sophisticated in denying, delaying, and derailing requests,
using FOIA as a tool of secrecy not of openness. So we can
reverse this trend, but it is going to take significant action,
such as:
Number one, we probably should codify the presumption of
openness. Let us enshrine into law that records should be
freely available to the public unless disclosure would cause a
specific, foreseeable, and identifiable harm.
Number two, definitely, as we have heard here, strengthen
OGIS. It needs more staff, it needs more independence, it needs
more authority. OGIS should have a Chief FOIA Officers Council
to recommend changes. OGIS should have enforcement powers. Some
States have created enforcement mechanisms. Even Mexico has. So
why not the U.S. Government? Really.
Number three, streamline the process. It is good to hear
work is underway in a single online portal for receiving and
tracking requests. Great. Harness the Internet, save money,
time, frustration. I think we can all agree to that.
But more important, number four, far more important than
technology, gizmos, doodads, and gee-gaws is reigning in the
statutory exemptions. That is primarily the most important
thing we can do, because exemptions are being used today to
end-run FOIA, crippling the law. And over the years, we
appreciate pushback on exemptions, most recently with the farm
bill. But we need to narrow the application, particularly with
b(3). We need sunsets. We need a public interest balancing
test, like Ms. Bennett said. And we need to require exemptions
go through the Judiciary Committee for review.
Of course, there are many other ways we can make beneficial
changes to FOIA, and I know my colleagues next to me will
provide more ideas. But I think the final thought I would like
to leave you with is this: We are undergoing a climate change
in this Nation with our transparency, and unless we take action
now, I think we can forecast a future shrouded by cloudiness,
darkness, and secrecy.
I thank you for the opportunity to testify, and I look
forward to answering your questions. Thank you.
[The prepared statement of Prof. Cuillier appears as a
submission for the record.]
Senator Franken. Thank you, Doctor.
Professor Metcalfe.
STATEMENT OF DANIEL J. METCALFE, ADJUNCT PROFESSOR OF LAW, AND
EXECUTIVE DIRECTOR, COLLABORATION
ON GOVERNMENT SECRECY, AMERICAN UNIVERSITY
WASHINGTON COLLEGE OF LAW, WASHINGTON, DC
Professor Metcalfe. Good morning, Mr. Chairman and Members
of the Committee. As someone who has worked with the Freedom of
Information Act now for more than 35 years, I am pleased to be
here this morning to provide an academic perspective on the Act
and its governmentwide administration.
My own views today are rooted in my work at American
University's Washington College of Law in recent years, where I
teach courses in Government information law and direct the
Collaboration on Government Secrecy, or CGS.
In addition to maintaining an extensive website as an
academic resource for all who are interested in Government
secrecy and transparency (as two sides of the same coin), CGS
has conducted an extensive series of day-long programs on the
subject, with particularly heavy focus on the FOIA and, most
recently, on the Obama administration's implementation of it.
Next week, we will hold our 24th such academic program--our
annual celebration of Freedom of Information Day--and I am
pleased to note that this Committee's Chairman has twice
participated in them.
This academic perspective is also informed by decades of
experience in leading the component of the Department of
Justice, then the Office of Information and Privacy, now called
the Office of Information Policy, that discharges the Attorney
General's responsibility to guide all agencies of the executive
branch on the complexities of the FOIA's administration.
I know firsthand of the challenges involved in encouraging
proper compliance with the Act, including new policy conformity
by all agencies. Simply put, I have ``been there, done that,''
through several Presidential administrations, time and again.
So it is through that lens that I view the many ways in
which the openness-in-government community has been
disappointed, greatly disappointed, by the surprising
inadequacies of the Obama administration's implementation of
new FOIA policy--especially the key standard of ``foreseeable
harm''--during what has now been these past 5 years. This began
with the Holder FOIA Memorandum itself. Contrary to all
expectations, and despite the precedent established by Attorney
General Janet Reno, the Holder FOIA Memorandum did not by its
terms apply its new ``foreseeable harm'' standard to all
pending litigation cases--where it could have had an immediate,
highly consequential impact. Rather, it contained a series of
lawyerly hedges that appear to have effectively insulated
pending cases from it.
As one of the speakers at a CGS FOIA Community Conference
put it, the FOIA requester community is still waiting to see a
list of any litigation cases in which the ``foreseeable harm''
standard has been applied to yield greater disclosure. And
after all these years now, notwithstanding what you heard this
morning, there is a strong suspicion that there are few or
perhaps even no such cases.
Thus, the best possible opportunity to press for full
adoption and use of this standard throughout the executive
branch, in a concrete, exemplary fashion, has been lost.
Perhaps I should note parenthetically here that the
bipartisan FOIA amendment bill passed by the House 2 weeks ago,
H.R. 1211, that was mentioned by Senator Grassley, contains a
provision that would codify the ``foreseeable harm'' standard
as a matter of law.
Neither did the Holder FOIA Memorandum or its initial
implementation guidance take the expected step of directing
agencies to reduce their backlogs of pending FOIA cases. That
is something that I address at great length in my written
statement, and I will just in the interest of time skip over
that now.
But that should be a matter of concern for more than one
reason: The awkward fact that the Department of Justice's own
FOIA backlog has been allowed to worsen over the past 3 years
is bad enough for its own FOIA requesters. But when the lead
Government agency for the FOIA fails so badly to reduce its own
backlog, it makes it much harder for it to press other agencies
to dutifully comply. And this ``do as I say, not as I do''
problem is exacerbated by the fact that the Department's high-
visibility leadership offices saw their own numbers of pending
FOIA requests increase, rather than decrease, over the same
period, by an aggregate figure of 3.95 percent. This makes it
impossible to lead by example.
Turning to the FOIA's exemptions, I will mention that the
one that continues to cry out for immediate attention is
Exemption 2. That is because of the Supreme Court decision that
was issued 3 years ago that basically eviscerated Exemption 2,
leaving a lot of sensitive information within the Government
without an exemption that applies.
I think it is fair to say that there is no reasonable
question that remedial legislation is needed. And as Senator
Grassley suggested in a question 2 years ago, it is
irresponsible for the executive branch not to have proposed an
amendment of Exemption 2 since that time.
In sum, there certainly is much reason to look askance at
the implementation of new FOIA policy over the past 5 years, to
put it mildly. And this relatively brief recitation here today
does not even take the time to consider in depth other large
deficiencies, such as the glaring fact that most Federal
agencies (especially, and again inexplicably, the Department of
Justice) have not updated their vital FOIA regulations for
many, many years now, even though required to do so, put aside
the Holder Memorandum in 2009, by the 2007 FOIA Amendments.
Nor does it include the fact that as found in an academic
study conducted by CGS, less than half of the Exemption 3
statutes used by agencies actually qualify under that
exemption.
In conclusion, I surely appreciate the Committee's efforts
today as in the past to, in the words of today's hearing title,
``reinvigorate the FOIA for the Digital Age.'' But I daresay
that what now appears to be needed--much to nearly everyone's
great disappointment and surprise--is sustained attention of a
serious, remedial nature.
Thank you for the opportunity to testify today, and I look
forward to answering your questions.
[The prepared statement of Prof. Metcalfe appears as a
submission for the record.]
Senator Franken. Thank you, to all of you. Thank you,
Professor Metcalfe.
I will start with Ms. Bennett. You have heard the
Government's testimony today. Do you agree with their
assessment of agency compliance with FOIA?
Ms. Bennett. I would certainly disagree that there have
been robust efforts to implement the FOIA and that things are
going particularly well. My organization believes that the
Department of Justice, when they issue their annual report
cards, generally act more as the cheerleader for how agencies
are doing. And I think that to make agencies really pay
attention to processing FOIA the way that they should be and to
begin to really make a difference for requesters, we need to
start calling agencies out on what they are doing wrong. So we
hope that the Department of Justice takes a more fulsome look
at not just where things are going well but where things are
going poorly.
Senator Franken. Well, let me ask you that. Where are
things going poorly? And what are your priority areas for
reform?
Ms. Bennett. Sure. I think certainly the use of Exemption
5, as I talked about in my testimony, is a problem that we have
seen over and over again. I know that the Department of Justice
said that you cannot really use that statistic because it
depends on what has been requested. But they certainly use that
statistic when it is in their favor.
So we think that it is telling, and it is important,
especially if you are looking at it over time, comparing year
to year. So putting some tighter boundaries around how that
exemption is used is definitely one of our number one
priorities.
Senator Franken. Okay. Thank you.
Dr. Cuillier, we know that FOIA has for over 40 years been
instrumental to the press and to its role in our democracy. By
the same token, we know that the FOIA system remains far from
perfect. In your opinion, what are the most pressing problems
that representatives of the news media face in navigating the
FOIA system?
Professor Cuillier. Exemptions, hands down. It is agencies
figuring out how to avoid giving out information they do not
want out. And usually when journalists are requesting
information, it is to find something that perhaps an agency
does not want the public to know. So they will figure out any
way to game the system, and that is huge frustrations in
addition to delays and delays and delays, which is essentially
denial to a journalist. And that is what is happening today. It
is not even just FOIA. We are talking about a big trend in all
forms of information control, excessive PIO controls at the
Federal agencies, State and local government. It is everywhere.
And this is a trend that has been going on for 40 years. The
research supports it, the body of evidence. There may be folks
who say otherwise, but it is just not supported overall, big
term.
I sound like a climate change scientist from the 1980s, but
I am telling you, something is amiss. And unless we do push
back against it, it is going to be pretty bad here.
Senator Franken. Professor Metcalfe, in your testimony you
talked about the exemptions. Do you agree with the other two
witnesses?
Professor Metcalfe. I certainly do agree that there are
serious problems. If you wanted to have a list just to focus,
in priority fashion, I would suggest six things in total:
One, that there needs to be focus on the implementation of
the foreseeable harm standard, which, by the way, is a very
specific, concrete thing. That is how we implemented it in the
Clinton administration, not with some more amorphous term such
as ``presumption of openness,'' which does not mean that much
to a FOIA analyst in the trenches.
Second, backlog reduction, which I discussed in great
detail in my written testimony. The Department of Justice's
backlog has increased. The Open Government Directive in
December 2009 mandated all agencies with a significant backlog
to reduce their backlogs by 10 percent per year since then.
That has not happened governmentwide. There has been an
increase. It has not happened within the Department of Justice
in particular. There has been an increase. It has not happened
in the three top leadership offices of the Department: AG,
Deputy, and Associate's office. There has been an increase.
Third, Exemption 2. I do not think there is any reasonable
dispute that remedial legislation is needed there, and as I say
in my written testimony, it is utterly unfathomable to me why
that has not happened. I am not casting aspersions on the work
of the Committee because the tradition, certainly the one that
I followed for more than 25 years in leading that office, was
that the executive branch, Justice, and OMB took the initiative
in proposing legislation. But it has not happened. No one knows
why.
Fourth, regulations. As I mentioned earlier, regulations
may not be legally required to implement the Holder Memorandum,
but when we issued the one that I wrote for Janet Reno in
October 1993, we codified, so to speak, that standard in our
regulations, and other agencies did as well. That is good
policy; it is good practice to do so. It is inexplicable why
that has not happened.
Fifth, Exemption 3. As I indicated in my written testimony,
there is a strong potential for one or the other committee on
the Hill, this Committee or the counterpart committee on the
House, to look at the academic groundwork we have done at my
secrecy center because we have found that barely half of the
more than 300 Exemption 3 statutes reported as used by Federal
agencies actually qualify as Exemption 3 statutes when you look
at them carefully.
And, sixth, something you have already discussed, which is
OGIS, and I know that you are very focused on that as well.
Senator Franken. Well, thank you all, and I apologize but I
have to go to a vote. So we are going to have to close the
hearing. I want to thank all of you. I want to thank the
Chairman and the Ranking Member and, again, each of you.
We will hold the record open for 1 week for submission of
questions for the witnesses and other materials.
This hearing is adjourned. Thank you.
[Whereupon, at 11:43 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
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