[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










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                     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.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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