[Senate Hearing 113-449]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-449

 

  WE THE PEOPLE: FULFILLING THE PROMISE OF OPEN GOVERNMENT FIVE YEARS
                     AFTER THE OPEN GOVERNMENT ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 13, 2013

                               __________

                           Serial No. J-113-7

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------

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                       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
            Bruce A. Cohen, Chief Counsel and Staff Director
              Kolan Davis, Republican Chief Staff Director


                            C O N T E N T S

                              ----------

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    30
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3

                               WITNESSES

Witness List.....................................................    29
Pustay, Melanie Ann, Director, Office of Information Policy, U.S.
  Department of Justice, Washington, DC..........................     6
    prepared statement...........................................    32
Nisbet, Miriam, Director, Office of Government Information
  Services, National Archives and Records Administration,
  Washington, DC.................................................     8
    prepared statement...........................................    43
Moulton, Sean, Director, Open Government Policy, Center for
  Effective Government, Washington, DC...........................    18
    prepared statement...........................................    49
Goldberg, Kevin M., Esq., Fletcher, Heald & Hildreth, PLC,
  Arlington, Virginia, on behalf of the Sunshine in Government
  Initiative, American Society of News Editors...................    20
    prepared statement...........................................    58
Blanton, Thomas, Director, National Security Archive, George
  Washington, University, Washington, DC.........................    22
    prepared statement...........................................    75

                               QUESTIONS

Questions submitted by Senator Patrick Leahy for Melanie Pustay..    84
Questions submitted by Senator Patrick Leahy for Miriam Nisbet...    86
Questions submitted by Senator Charles Grassley for Miriam Nisbet    87
Questions submitted by Senator Amy Klobuchar for Sean Moulton....    88
Questions submitted by Senator Amy Klobuchar for Kevin Goldberg..    89

                                ANSWERS

Responses of Melanie Pustay to questions submitted by Senators
  Leahy and Grassley.............................................    90
Responses of Miriam Nisbet to questions submitted by Senators
  Leahy and Grassley.............................................   104
Responses of Sean Moulton to questions submitted by Senator
  Klobuchar......................................................   115
Responses of Kevin M. Goldberg to questions submitted by Senator
  Klobuchar......................................................   118

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

``Texas Gets High Marks Regarding Transparency in Legislative
  Matters but Still Needs More Sunshine,'' editorial, Austin
  American-Statesman.............................................   124
Freedom of Information Act (FOIA), study by Associated Press
  (AP), March 11, 2013...........................................   126
Anne L. Weismann, Citizens for Responsibility and Ethics in
  Washington, testimony, March 13, 2013..........................   130
Office of Government Information Services (OGIS), 2013
  Recommendations, March 13, 2013................................   137
Office of Government Information Services (OGIS), cover letter,
  March 12, 2013.................................................   139
Letter from Senator Al Franken to Melanie A. Pustay, Director,
  Office of Information Policy, Washington, DC, October 9, 2012..   141

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminuous nature,
  previously printed by an agency of the Federal Government or
  other criteria determined by the Committee, list: OGIS 2013
  Report for FY 2012: Building a Bridge Between FOIA Requesters &
  Federal Agencies. https://ogis.archives.gov/Assets/
  OGIS+Reports/OGIS+Report+March+2013.pdf........................   143

 
  WE THE PEOPLE: FULFILLING THE PROMISE OF OPEN GOVERNMENT FIVE YEARS
                     AFTER THE OPEN GOVERNMENT ACT

                              ----------


                       WEDNESDAY, MARCH 13, 2013

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:35 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Franken, Grassley, and Cornyn.

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

    Chairman Leahy. I apologize for the delay. As always, my
friend from Iowa is here right on time, even if I was not, so I
appreciate that.
    Senator Grassley. Sometimes I am not on time.
    Chairman Leahy. I cannot remember.
    This is an important hearing on one of our most cherished
open government laws, the Freedom of Information Act, or FOIA.
It is one part of our system of laws that means the most to me.
We are also commemorating Sunshine Week. That is an annual
celebration of transparency in our democratic society. The more
transparency you have in any society, the more apt it is to be
a democratic and open society.
    For more than four decades, FOIA has translated our great
American values of openness and accountability into practice by
guaranteeing access to government information. Sunshine Week is
a timely opportunity to take stock of the progress we have made
in improving the FOIA process, as well as some of the very real
challenges that remain when citizens seek information from
their government.
    Five years ago, Congress enacted the Leahy-Cornyn OPEN
Government Act. This was the first major reform to the Freedom
of Information Act in more than a decade. It was a bipartisan
bill with Senator Cornyn and myself. We wanted to demonstrate
that we wanted freedom of information whether we have a
Republican or a Democratic administration. It should be the
same. And so today we are going to examine how federal agencies
are implementing the reforms in this landmark law.
    When Congress enacted this bipartisan legislation, I said
that our goal was to help reverse the troubling trends of
excessive FOIA delays that we had witnessed for so many years
and, by eliminating them, restore the public's trust in their
government. The OPEN Government Act sought to restore
meaningful FOIA deadlines but also increase transparency.
    In the five years since we enacted it, there have been some
promising developments, and I commend the Obama administration
for establishing innovative initiatives such as Data.gov and
FOIA.gov, which have significantly increased the public's
access. I am also pleased that we are beginning to witness
progress in reducing FOIA backlogs across government. Now,
these are all good signs, but there are still some major
challenges.
    Too many of our federal agencies are not keeping up with
the FOIA reforms in the OPEN Government Act. A recent audit
conducted by the National Security Archive found that 56 out of
99 federal agencies--more than half--have not updated their
Freedom of Information Act regulations to comply with the OPEN
Government Act.
    Now, I would tell those 56 that we did not pass this law
just for the sake of having a law on the books. We worked very
hard. Republicans and Democrats came together to have a good
law, and to have it ignored is putting oneself above the law.
    I am troubled by reports that the Obama administration is
becoming more secretive about its national security policies.
According to the Associated Press, during the past year, the
Obama administration withheld more information for national
security reasons in response to FOIA requests than at any other
time since the President took office.
    Now, for many years--during both Democratic and Republican
administrations--I have urged the Justice Department to be more
transparent about the legal opinions issued by its Office of
Legal Counsel. Our government must always balance the need to
protect sensitive government information with the equally
important need to ensure public confidence in our national
security policies. Simply saying everything is secret does not
instill confidence in the American people. The uneven
application of fee waivers, the growing use of exemptions, and
inadequate communication with FOIA requesters also are key
impediments.
    Now, I am pleased that representatives from the Department
of Justice and the National Archives and Records Administration
are here to discuss these challenges and detail how the Obama
administration is implementing FOIA. We have a distinguished
panel of expert witnesses.
    Speaking of the Leahy-Cornyn Act, which I was just
praising, here is Senator Cornyn. I appreciate you being here,
Senator.
    This Committee has a long tradition of working across the
aisle when acting to protect the public's right to know, during
both Democratic and Republican administrations. I value the
strong bipartisan partnership that I have formed over the years
with Senator Cornyn and Ranking Member Grassley on open
government matters. Again, I do not care which party holds the
Presidency. Open government is important to every single
American, no matter what their political affiliation. The
annual celebration of Sunshine Week reminds us that openness
and transparency in government is important to all Americans.
So I hope that this spirit is going to guide our work today. I
look forward to a good discussion.
    Senator Grassley.

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

    Senator Grassley. Well, first of all, I can say that I
listened to everything you just said, and I agree with you, and
I thank you for making those strong statements. There is
probably no reason for me to speak, but I want to speak anyway.
    Before I go to my remarks, I think that the Chairman has
said something I am just going to say. This is a problem
whether you have Republican or Democrat administrations, and I
have been in this business long enough to work under both. If
there is a difference with this administration, it is not
different from previous administrations only in the sense that
the President has said, when he was first sworn into office,
that this was going to be the most transparent administration
of any. And I know he still believes that because he has
updated that statement with some recent things I have seen on
television. And that would be the only difference. So that is a
standard he set, not one that the law sets or anything. But it
is a problem in all administrations.
    So I thank you for holding this hearing today during
Sunshine Week. It is always good to focus on the important
topic of transparency. Fortunately, every March we have the
opportunity to do so.
    Today we are looking at the most recent amendments of the
Freedom of Information Act. Five years ago, thanks to the work
of the Chairman and Senator Cornyn, the OPEN Government Act
became law. That law sought to strengthen the Freedom of
Information Act in several ways. However, five years later
problems remain. Agencies are not putting into practice what
this law requires.
    It is frustrating that there are so many reports
criticizing this administration's implementation of the law. As
we make clear, every administration has put too many
impediments into open government. It should be just the
opposite. The President reports criticizing and not
implementing law, reports complimenting administrations and
more openness. So I would like nothing more than to see groups
praising this administration or any administration for being
really transparent.
    Instead, there is a December 2012 study from the National
Security Archive which found that 56 federal agencies have not
fully complied with the 2007 law. Things can move slowly within
government, but this seems to be a bit too much.
    As reports show, the Department of Justice has not even
updated its own Freedom of Information Act regulations since
2003, which also means that they were not updated during a
Republican administration. Ironically, the Justice Department
is charged with encouraging and monitoring governmentwide
Freedom of Information Act compliance.
    Delays from the Justice Department are not just confined to
private citizens. Last year I asked the Attorney General about
the House Committee on Oversight and Government Reform 2011
Department of Homeland Security investigation. The
investigation found that political staff under Secretary
Napolitano corrupted the agency's Freedom of Information Act
compliance procedures. I discussed this investigation at last
year's hearing in this Committee. I then asked the Attorney
General about it as a follow-up question to his September 2011
Committee testimony. However, to date, I have not received a
response from the Attorney General to these questions.
    Additionally, I have not yet received any proposals from
the Department of Justice to address the Supreme Court's
decision in Milner v. the Navy. I recall that Milner had been
characterized as leaving unprotected a great deal of
information that could threaten public safety if disclosed. At
the hearing last year, one of our witnesses here back again,
Ms. Pustay, told us legislation was needed. In fact, we were
told that the Justice Department was ``actively working'' on a
proposal and that she ``looked forward to continuing to working
with the Committee on this issue.'' So here we are again, and I
have still not seen this legislative language.
    So there is widespread frustration with this
administration--only because it is this administration. Ten
years from now, it will be a different one, unrelated to the
freedom of information process. But problems with implementing
the Freedom of Information Act are even more troubling because
the law compels certain actions, and the Department of Justice
has the responsibility to be a leader.
    Unfortunately, DOJ actions set a bad example for other
agencies. When the Department of Justice failed to update its
own regulations, we should not be surprised when other agencies
failed to update theirs as well. Such behavior undermines the
President's transparency pledge.
    Another recent example highlighted this culture of
obfuscation coming from the EPA. Last week I joined in a letter
sent from Senator Vitter and Congressman Issa to the Attorney
General. Senator Vitter's staff recently discovered a troubling
exchange between government officials. The documents show
advice from the Environmental Protection Agency Office of
General Counsel to a regional official handling freedom of
information requests. The Office of General Counsel said,
first, that it is standard protocol in such cases to instruct
the requester to narrow their request because it is overbroad.
Second, the Office of General Counsel at EPA instructed the
regional officials to tell the requester that it will probably
cost more than the amount of money that they have agreed to
pay. This exchange validates those who criticize bureaucrats
for deterring citizen engagement.
    And the advice regarding fees may even be against the law.
Last month Congressman Issa and the Democratic leader over
there, Mr. Cummings, sent a letter to the Office of Information
Policy. That letter covered a lot of ground regarding Freedom
of Information Act compliance.
    These are questions that the Justice Department needs to
answer, so I support this bipartisan effort. Hopefully we will
get an update today as to the progress being made in responding
to the letter.
    Justice must lead by example. Unfortunately, the evidence
demonstrates that the Department has a lot of work to do. I
look forward to hearing from our witnesses, and we need candid
discussion of this issue.
    Mr. Chairman, you have been very forthright in your
statement, and I compliment you for it, and your weight around
here will do a lot of good in getting us the results we can
expect.
    Chairman Leahy. Thank you, and I thank you for the help
from all four of you. We have Senator Franken and Senator
Cornyn here. Senator Franken is going to take the gavel a
little later on, but did either one of you want to say anything
before we start with the witnesses?
    Senator Franken. I have no opening statement. I just want
to say what a privilege it is to be with these three gentlemen
who have been champions of open government--Senator Cornyn and
the Chair, the authors of the OPEN Government Act, and Senator
Grassley, who has always been focused on transparency in
government and has been a real champion of that. So it is a
pleasure to be here.
    Chairman Leahy. Thank you.
    Senator Cornyn.
    Senator Cornyn. Mr. Chairman, thank you for your kind words
earlier. I know people consider us the ``Odd Couple'' in many
respects on open government issues, but to me it is a no-
brainer. Democracy only works when the public knows what their
government is doing and holds public officials accountable. And
like it or not, our friends in the news media are the ones who
generally are in the business of rooting that information out,
and that is their job. It is different from our job. But we
have to learn to live with it in public life. And it is very
important.
    So I want to just thank you again for your leadership, Mr.
Chairman, in holding this hearing during Sunshine Week. As you
noted, it has been a little over five years since President
Bush signed the OPEN Government Act into law, and I will not
repeat what you and Senator Grassley have already said about
concerns. We can address those to the particular witnesses here
today that we are glad to have.
    But I do want to brag, if you will permit me just briefly.
I want to submit for the record an editorial from yesterday's
Austin American Statesman that is entitled, ``Texas gets high
marks regarding transparency in legislative matters, but still
needs more sunshine.''
    [The editorial appears as a submission for the record.]
    Senator Cornyn. It gets an A rating, along with seven other
States, and I think the reason why Texas is a leading light in
open government reform is because not only do we have the right
laws in place, but Texas leads because its leaders are
committed to making sure the cause of open government is
enforced, and it requires government agencies to comply with
the law. And until we have the same level of commitment to
permeate the federal bureaucracy, I fear we can pass more laws
that will do very little to shed sunlight on the operation of
the Federal Government.
    But I think we have made a good start, Mr. Chairman. Thanks
for having this hearing, and I look forward to learning from
the witnesses whether there are additional things we need to do
in order to let the sunshine in.
    Thank you.
    Chairman Leahy. Well, thank you very much, Senator Cornyn.
As I said, I have enjoyed the partnership on this, and we will
continue it. I think the American people expect us to, and they
should.
    Melanie Pustay is the Director of the Office of Information
Policy at the Department of Justice. That office has statutory
responsibility for directing agency compliance with the Freedom
of Information Act. Before becoming the office's Director, she
served for eight years as Deputy Director, so she certainly has
experience there. She has extensive experience in FOIA
litigation. She received the Attorney General's Distinguished
Service Award for her role in providing legal advice, guidance
and assistance on records disclosure issues. She earned her law
degree from American University's Washington College of Law,
and served on the Law Review, as I recall.
    Please go ahead with your statement, and then after you, we
will hear Ms. Nisbet's statement, and then we will go to
questions. Please go ahead.

     STATEMENT OF MELANIE ANN PUSTAY, DIRECTOR, OFFICE OF
 INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Ms. Pustay. Thank you, and good morning, Chairman Leahy,
Ranking Member Grassley, and Members of the Committee. I am
pleased to be here today during Sunshine Week to discuss the
OPEN Government Act of 2007 and the Department of Justice's
continued efforts this past year to assist agencies in
improving their FOIA administration and ensuring that President
Obama's Memorandum on the FOIA and Attorney General Holder's
FOIA Guidelines are fully implemented.
    As you know, this Sunshine Week we celebrate the fourth
anniversary of the Attorney General's FOIA Guidelines, and I am
pleased to report to you today that agencies are taking
concrete steps to improve FOIA administration, and significant
accomplishments have been achieved. The number of requests
received by agencies has increased every year since Fiscal Year
2009, and during this past year in particular, the Government
was faced with the historically high number of over 650,000
requests. But in response to this ever increasing demand,
agency FOIA offices processed more than 665,000 requests. That
is 14,000 more than were received, and it is over 34,000 more
than were processed the last fiscal year.
    Even more significant than that, agencies processed this
record number of requests while still maintaining a high
release rate, releasing information in 93 percent of requests
where records were processed for disclosure.
    Additionally, as you know, the OPEN Government Act
highlighted Congress' desire for agencies to respond to
requests more timely, and agencies have made progress in this
area as well.
    The government's overall processing time for both simple
and complex requests has significantly improved as agencies are
providing information to requesters more quickly. And as a
result of those efforts, I am very proud to report that the
government overall achieved a 14-percent reduction in the
request backlog this past fiscal year. This marks a nearly 45-
percent reduction in the number of backlog requests that
existed four years ago. This illustrates the progress that
agencies are making in implementing the Attorney General's
Guidelines. And all of these efforts are more than just
statistics. They represent real improvements to the FOIA
process as agencies are getting more information to more
requesters more quickly.
    I am particularly pleased to report on the successes
achieved by the Department of Justice. In response to record
high numbers of incoming requests, we once again increased the
number of requests we processed at the Department. We improved
our average processing time and maintained a high release rate.
In fact, of our requests that were processed, nearly 75 percent
resulted in a full release of records.
    My office has been actively engaged in a variety of
initiatives to help FOIA administration across the government.
For example, this past year my office continued to lead the
effort to maximize agencies' abilities to utilize more advanced
technology to streamline the most time-consuming parts of FOIA
processing, such as the time it takes to search for and review
records.
    OIP partnered with the Department's Civil Division to
conduct a digital FOIA pilot program so we could assess the
impact of using these existing document management tools to
automate tasks that were previously done manually. The results
of the study are very encouraging, and we are going to continue
our work in this area for the benefit of all agencies.
    Additionally, just yesterday my office issued new
agencywide guidance on metadata tagging standards for FOIA that
lays the groundwork for enabling easy aggregation of FOIA data
into one governmentwide FOIA library where all the records
posted by agencies can be assessed easily in one place.
    And, finally, to increase agency accountability, OIP
recently instituted a new quarterly reporting requirement for
all agencies that will provide the public with a more real-time
assessment of the flow of FOIA requests handled by the
government.
    Starting with this current fiscal year, agencies will
report on four key FOIA statistics each quarter. The Department
recently enhanced our ``Reports'' page on FOIA.gov, which will
display all this quarterly reporting data.
    Looking ahead, the Department is fully committed to
achieving the new era of open government that the President and
Attorney General envision. We have accomplished a great deal
these past four years, but OIP will continue to work diligently
to help agencies achieve even greater transparency in the years
ahead.
    In closing, the Department of Justice looks forward to
working together with the Committee on matters pertaining to
governmentwide administration of the FOIA, and I am, of course,
pleased to answer any questions you might have.
    Thank you.
    [The prepared statement of Ms. Pustay appears as a
submission for the record.]
    Chairman Leahy. Thank you very much.
    Our next witness is Miriam Nisbet, who is the founding
Director of the Office of Government Information Services at
the National Archives and Records Administration. Before that,
she served as Director of the Information Society Division for
the United Nations Educational, Scientific, and Cultural
Organization (UNESCO) in Paris. Her extensive information
policy experience also includes previous work as legislative
counsel for the American Library Association, and the Deputy
Director of the Office of Information Policy for the Department
of Justice. She earned her bachelor's degree and her law degree
from the University of North Carolina, and is no stranger to
this Committee.
    Good to have you here. Please go ahead.

  STATEMENT OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT
      INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS
                 ADMINISTRATION, WASHINGTON, DC

    Ms. Nisbet. Thank you, and good morning, Mr. Chairman,
Ranking Member Grassley, and Members of the Committee. I am
very pleased to be here with you during Sunshine Week, and I
would like to just mention we do have the original Freedom of
Information Act on display in the Rotunda of the National
Archives, and we would love to have you come take a look at it.
    Chairman Leahy. I will.
    Ms. Nisbet. Thank you.
    I appreciate the opportunity, too, because as Director of
the Office of Government Information Services, we, of course,
were created by the OPEN Government Act of 2007.
    As you know, we work with all executive branch departments
and agencies as well as requesters. We are in a unique position
to observe various aspects of agency Freedom of Information Act
processes.
    As I have shared with this Committee before, much of OGIS'
work in the last three years has been to establish the office,
including determining our role in the FOIA process while
actively carrying out our important mission.
    The model that Congress chose for our office is a hybrid.
We are a neutral place for FOIA requesters and agencies to come
for non-binding assistance with FOIA disputes, and at the same
time we have a review function. We look at agencies' FOIA
policies, procedures, and compliance. And these two missions
may at times be in tension with one another. On the one hand,
in mediation we provide voluntary and partial assistance to
agencies and must encourage them to work with us. And on the
other hand, we have a review mandate that is not a voluntary
process. In both instances, we must build the trust of agencies
and gain their confidence in our work.
    Because mediation cases continue to arrive in increasing
numbers--our workload was up in the first quarter of Fiscal
Year 2013 considerably compared with last year--our staff
spends most of its time responding to those cases, and we have
not yet been able to fully turn to building and carrying out
the more robust review program that we envision. But we hope
that will improve.
    The 2007 amendments centered on a few tenets, including
executive support, customer service, and dispute resolution.
The new provisions in the law added heightened statutory roles
for the Chief FOIA Officers and FOIA Public Liaisons within the
agencies, both to provide top-down support for FOIA activities
and also to improve interaction between requesters and
agencies.
    Introducing dispute resolution to the FOIA process was
another important aspect of the amendments. Our observations
providing mediation services and reviewing agencies' FOIA
policies, procedures, and compliance helped shape our FOIA
recommendations. We determined early on that nearly everything
we do at OGIS is geared toward improving FOIA in some way. We
regularly provide suggestions to agencies and requesters on
various aspects of the FOIA process, and we also identify and
target bigger-picture recommendations. Last year, we shared
five recommendations to improve the FOIA process, and my
written testimony updates you on where we have been working on
those recommendations. And I would also like to share with you
recommendations that are new this year.
    We recommend that agencies encourage and support the use of
dispute resolution in FOIA processes. OGIS seeks to more
strongly connect FOIA professionals, legal counsel, and dispute
resolution professionals to embed dispute resolution firmly
into the FOIA process with the goal of preventing and resolving
disputes administratively.
    We also encourage agencies to remind all staff of the
importance of FOIA, and I have attached to my testimony the
message that the Archivist of the United States, David
Ferriero, sent to our staff last week in anticipation of
Sunshine Week.
    Additionally, this year we have identified two issues to
research and explore. We plan to examine FOIA fees. As you all
have noticed and brought out today, it is a persistent problem
for requesters and agencies. And we also want to look at
immigration records and FOIA. While not ripe for
recommendations yet, we anticipate that they will be
forthcoming.
    There are still many improvements to be made in FOIA
administration. Indeed, my office hears too often from
requesters who cannot get a simple answer to when they can
expect to get a reply from the agency. At the same time, many
requesters may not appreciate the challenges that agency FOIA
professionals face in dealing with complex requests and
voluminous records. We also believe there continues to be too
much FOIA litigation. The latest figures show a cost of about
$23 million a year. I think that might be conservative, too.
    Nevertheless, we believe that OGIS is making a positive
impact on the FOIA process from the standpoint of requesters
and agencies. We appreciate our unique position to observe and
reflect on FOIA activity across the government, and we believe
our role will be an important part of improving the FOIA
process in years to come.
    Thank you, and I will be happy to answer any questions.
    [The prepared statement of Ms. Nisbet appears as a
submission for the record.]
    Chairman Leahy. Well, thank you, and I note your comment at
the end there about too much FOIA litigation. Of course, some
would argue that if there were speedier answers to FOIA
requests and more openness, there might be less litigation,
too. I am especially concerned about that in the area of
national security.
    You know, when Senator Cornyn and I worked with others on
the OPEN Government Act, we made it very clear that we were not
doing this just as an exercise. We really wanted it to work,
and we wanted it to work whether we were in the Senate or not.
And no matter who was President. We just wanted this to work.
And I saw a recent report by the National Security Archive
saying more than half of all federal agencies have failed to
update their FOIA regulations to comply with this law. That is
worrisome. They said that 62 percent of all federal agencies
have not updated their regulations to comply with the Attorney
General's March 19, 2009, FOIA memorandum.
    Why is this? Let me ask Ms. Pustay first. Why are the
majority of federal agencies not in compliance with the OPEN
Government Act? And what is the Justice Department doing to
make sure they update their regulations?
    Ms. Pustay. I am happy you asked this question because
the----
    Chairman Leahy. You are probably more happy than some of
those agencies that have not updated that I asked this
question, but go ahead.
    [Laughter.]
    Ms. Pustay. Why I am happy to respond is that the key fact
that is missing in this discussion is that the amendments that
you put into the FOIA through the OPEN Government Act were
effective upon enactment. They did not require implementing
regulations. So they were effective once the bill was signed
into law. A couple provisions had later effective dates.
    And, similarly, the Attorney General Guidelines did not
require agencies to promulgate or change their regulations. The
Attorney General Guidelines are fully--the agencies' compliance
with the Attorney General Guidelines are fully detailed in the
first-ever reporting requirement that we initiated specifically
under those Guidelines, which are the Chief FOIA Officer
Reports. We have actually never had such a robust vehicle for
learning from agencies the steps they are taking to implement
the Attorney General's Guidelines.
    Chairman Leahy. No, I understand that, but why haven't the
62 percent of them updated their regulations?
    Ms. Pustay. Of course, we encourage agencies to update
regulations if they need to, if they need updating, and the
Department of Justice is in the process of updating our
regulations literally as we speak. But the importance of the
OPEN Government--we have done a range of things to make sure
that agencies fully understand the requirements, the changes to
the FOIA that were made by the OPEN Government Act----
    Chairman Leahy. But the OPEN Government Act has been there
for a number of years.
    Ms. Pustay. Exactly.
    Chairman Leahy. I understand that a certain amount of time
is needed for the learning process, but this seems awfully
long. I went to law school in less time.
    Ms. Pustay. Right. The agencies, again, there is a
disconnect, I think, between the premise that you need a change
in your regulations and the idea of the OPEN Government Act. As
I said, the OPEN Government Act made changes to the law that
were effective immediately. And so what my office did in
response to the enactment of the OPEN Government Act was we
immediately issued guidance to agencies. We had very detailed
guidance on each of the substantive provisions of the OPEN
Government Act.
    Chairman Leahy. How many agencies are fully in compliance
with the OPEN Government Act? What percentage?
    Ms. Pustay. I think all agencies are in compliance with the
OPEN Government Act.
    Chairman Leahy. So there should be no delays in getting
FOIA requests?
    Ms. Pustay. I think, as I mentioned in my opening
statement, Senator Leahy, there are improvements in processing
times across the government. There is a reduction in backlog.
The very things that were designed to be addressed by the OPEN
Government Act are taking hold. We have real reduction, and we
have real improvement in time.
    Chairman Leahy. Let me ask Director Nisbet about it,
because OGIS has completed its report to Congress and has
recommendations to improve the FOIA process. What are those
recommendations generally?
    Ms. Nisbet. Well, we have specific recommendations, Senator
Leahy, that we have provided to you last year that related to
technology to improving and supporting dispute resolution in
the agencies, a number of specific recommendations.
    We also make recommendations in a sense all the time with
suggestions to both requesters and agencies about how they can
improve the way they work and particularly how they can
communicate with each other.
    The regulations are a particularly difficult area, I think,
for agencies because it can take quite a long time to review
them. I would note that a number of them have started coming to
OGIS to have us sort of work through and look at their
proposals before they get to the point that they actually put
them out for notice. That is a service that we offer.
    I think there is a strong interest in updating regulations,
particularly nowadays, to be plainer, perhaps, than regulations
were in the past, easier for requesters to read----
    Chairman Leahy. You actually have them in English so people
can read and understand them?
    Ms. Nisbet. Yes, sir.
    Chairman Leahy. Fewer of the ``wherefore,'' ``hitherto,''
``whereas'' B.S.?
    Ms. Nisbet. Yes. Some of us have a hard time getting away
from that, but we are trying.
    Chairman Leahy. I was asked if I was using Latin up here. I
am going back to my grade school and high school education,
although one of our colleagues on this Committee introduced me
as the ``President Pro Tempore,'' saying, ``That is Latin for
`longest-serving dude.' ''
    [Laughter.]
    Chairman Leahy. I will not say which of the Carolinas that
Senator is from, but I thought it was pretty funny.
    Can I ask--do you mind if I ask just one more question
here?
    Senator Grassley. Go ahead.
    Chairman Leahy. Ms. Pustay, I have called on the Department
of Justice to be more transparent about opinions from the
Office of Legal Counsel. We even got into a discussion of this
yesterday with the President at a meeting he had with a number
of us. And according to a study by the Sunlight Foundation, the
Office of Legal Counsel is withholding more than a third of the
legal opinions that this office promulgated between 1998 and
2012.
    Now, I understand you have to balance the importance of
sensitive government information. We all understand that. We
are all used to handling classified and other information. But
I also wonder if sometimes that can be an easy crutch to say,
well, it is sensitive so let us hold it back.
    Can you provide the Committee with a list of all OLC
memoranda, a list of those that are currently in force?
    Ms. Pustay. That specific question is an oversight matter
that is beyond the purview of my office, which, of course, is
focused on implementation of the FOIA.
    Chairman Leahy. Well, I understand, but, you know, I get--
every time I ask the question, you know, of various people--the
Attorney General, the President, and others--it is always
somebody else's department. Bring back that question to the
Department and tell them--and I think Senator Grassley would
join me in this--that we would like to see the list of all the
OLC memoranda that are in force.
    Senator Grassley. You just asked for both of us.
    Chairman Leahy. Yes. Is that okay?
    Senator Grassley. Yes. Very good.
    Chairman Leahy. Thank you. And we would like to know
whether they can be made available to the public. You may want
to emphasize back at DOJ that this is something we are very
serious about. We have had one especially that this Committee
may end up subpoenaing if we cannot get it.
    Senator Grassley.
    Senator Grassley. Well, I would back you up on that. In
fact, probably we have been pussyfooting around too long. So if
you want to do that, you surely have my backing.
    I am going to start out with Ms. Nisbet. Last December the
thing housed at Syracuse University, the Transactions Records
Clearinghouse, had a study released, finding that there were
more Freedom of Information Act lawsuits during the Obama
administration's first term as compared to the second Bush
term. These lawsuits forced the government to release
information. It is obviously costly and burdensome for
individuals. This increase has occurred even though the OPEN
Government Act created your office to mediate disputes between
the government and FOIA requesters.
    Now, you said in your testimony that this year your office
is recommending agency heads ``encourage and support the use of
dispute resolution in FOIA processes.'' Is it your view that
agencies are not currently taking full advantage of dispute
resolution that your office provides?
    Ms. Nisbet. Senator Grassley, let me answer in two ways.
    Bringing dispute resolution into the FOIA process was
really new with the amendments from 2007. My office got started
in September 2009, and we provide dispute resolution across the
executive branch. But, also, the law now gives dispute
resolution responsibility to the agencies as well.
    One of the things that really needs to be done and that we
are trying to do--it does take time; it also takes leadership
to emphasize how important it is--is to have that working at
the agency level. That is the best place to prevent disputes
and to resolve disputes. In fact, if we could put us out of
business so that it is all being taken care of at the agencies,
that would be terrific. I do not think that is going to happen.
    The second thing I just want to mention is in terms of
litigation. Dispute resolution, mediation, seems to be becoming
more and more accepted in the courts for a way to approach FOIA
disputes. For example, the DC Circuit Court of Appeals, the
United States Court of Appeals for the DC Circuit, now has a
pilot program in which it is requiring--requiring--mediation in
every FOIA lawsuit that comes before it. I think that is a
really good signal that you can mediate before, you can mediate
later, but probably better to mediate early.
    Senator Grassley. Ms. Pustay, your written testimony is
silent on the topic of reducing litigation. Does the Justice
Department encourage the use and support of dispute resolution?
    Ms. Pustay. Oh, sure we do. In fact, we have sent thousands
of requesters to OGIS since they have been in office, since
they have been up and running. But more importantly, we are
doing a variety of things all connected with implementation of
the Attorney General's FOIA guidelines which would have
significant potential to reduce lawsuits.
    As I mentioned, the fact that we have reduced backlogs and
improved processing times helps to reduce litigation. The fact
that we are maintaining, as a government, a high release rate,
releasing records in full or in part in more than 92 percent of
requests--and that is for the last four years. Under the
leadership of the Attorney General, we have had such a high
release rate. That cannot help but have a positive impact on
reduction in litigation.
    We have also issued guidance to agencies, informing them of
the importance of good communication with requesters. This is
one of the first things that my office did after the Attorney
General Guidelines were issued, because there are--oftentimes
the simple ability to pick up a phone or send an email to a
contact at an agency to ask a question about your request, to
have a human being explain that, yes, your request is here on
my desk, or it is here in my queue, here is the status of your
request, that can be tremendously important. And that is
something that we encourage and that we are constantly
reinforcing to agencies in our training.
    So we think there is a wide range of activities that we are
certainly undertaking as part of the Attorney General
Guidelines all for the benefit of improving FOIA administration
and reducing litigation.
    Senator Grassley. If I could ask one more question.
    This is for you, Ms. Pustay. The OPEN Government Act had a
goal of compelling faster FOIA processing. Agencies must
provide a response to the requester within 20 days indicating
how the agency plans to proceed. Example: whether or not the
agency will release the requested information.
    Unfortunately, the Federal Elections Commission is arguing
in federal court that a simple response acknowledging receipt
of a request is sufficient, and the Justice Department, who is
not involved in this case, has filed a brief supporting the
argument.
    So to you, why is the Justice Department arguing that any
communication with a requester satisfies the 20-day response
requirements? Isn't the law clear that more than a receipt of
acknowledgment is required? So why is the Justice Department
disregarding the plain meaning of the law, as I read it?
    Ms. Pustay. I am certainly not going to discuss anything
connected with an ongoing litigation case, as I am sure you
understand. But what I can tell you is that we have had, in
addition to the general focus that the Attorney General and the
President put in their FOIA memorandam about making more prompt
responses to requests, my office has actually pinpointed that
focus even further by calling on agencies to work to process
their simple track requests within--actually process them
within--an average of 20 working days. And we now actually
assess agencies on that requirement as part of what we do every
year when we review agency Chief FOIA Officer Reports.
    So we think it is very important that there be improved
processing time and particularly with simple track requests. We
have been encouraging agencies to do what they can to process
those requests within 20 working days.
    I am very proud to report, as I mentioned in my testimony,
that at the Department of Justice our average processing time
for simple track requests is under 19 days. So we are below the
20-working-day requirement for that metric, and for the
government overall, we have seen improvement in processing
times.
    Senator Grassley. Okay. I am done asking questions. Just
let me sum it up. I think this Chairman and I discussed in our
opening statement about regulations, and I think the exchange
you and I just had is an example of why regulations would be
helpful to provide clarity and instruction. We cannot satisfy
the requests just because they have responded within 20 days
with the first communication.
    Thank you.
    Senator Franken [presiding]. I would like to thank the
Ranking Member.
    Senator Cornyn, if you would like to go now, please.
    Senator Cornyn. Well, thank you, Mr. Chairman. Welcome.
Good to see you both.
    I am troubled by the costs and the delay associated with
the increase in litigation that we have seen over the last
couple of years. The whole purpose, or at least one of my
purposes, in working with Senator Leahy on the OPEN Government
Act and creating the ombudsman office was to help informal
resolution of any misunderstandings about either the scope or
the nature of a request for documents. That was based--I think
we have had this conversation before--on my experience when I
was Attorney General of Texas that many times people not
familiar with how to navigate government, they may be making
requests broader than they really want, or they may be
directing it to the wrong person. And the whole idea was to,
way before any kind of adversarial process is created, just
create more of a culture of customer service, for lack of a
better term. And I think that is part of the cultural shift
that has not yet occurred here in Washington, DC, but hope
springs eternal.
    Ms. Nisbet, the response that you made, I believe, about
the D.C. Circuit Court alternative dispute resolution for these
cases, of course, you know and Ms. Pustay knows that the
purpose was to prevent litigation in the first place, if
possible. And so it does not seem satisfactory to me to say
that the court as a docket management tool has instituted a
pilot program to deal with, mediate these cases.
    How do we prevent them from getting to the court in the
first place?
    Ms. Nisbet. First of all, I want to be sure you understand
that I was not suggesting that the D.C. Circuit is a solution;
rather, it is a great indication that they think mediation
should be working in FOIA cases.
    Senator Cornyn. In this case, I agree with the D.C. Circuit
Court.
    Ms. Nisbet. Yes, I do, too. I think it is a great start.
And so it is a model. It is also an incentive, I think, to
agencies to know that if they are going to have to--if a
lawsuit is filed against them, certainly in the DC Circuit--and
I understand there might be other circuits to do the same
thing--and they are going to be directed immediately to
mediation, that is an incentive to do it earlier.
    It does take a culture change. It is going to take time.
But certainly the dispute resolution skills training that we
teach, that the Office of Information Policy participates in
with OGIS, is aimed at giving people in the agencies the skills
they need to be able to better communicate with requesters, to
prevent those disputes in the first place, and become much more
comfortable with exactly the kind of give and take that you are
pointing to and that can make a difference and can head off
litigation so that we do not have somebody having to file a
federal case just because they cannot get--they cannot have a
communication with the agency about what they are looking for
and when they are going to get it.
    Senator Cornyn. I do not have any statistics at hand, but I
would imagine that the number of people or the percentage of
people who actually file lawsuits is a much smaller number than
those who make FOIA requests in the first place. And, of
course, lawsuits are expensive, and so it seems to me to be an
inadequate remedy--I know you are not suggesting otherwise--to
provide for mediation at the circuit court.
    Are there other tools that you believe that are needed? In
other words, do Senator Leahy and I and the Committee need to
look at additional reforms aimed at preventing litigation or
otherwise resolving these disputes more quickly?
    Ms. Nisbet. Well, I do think the amendments from 2007, the
OPEN Government Act was really an innovation, and it is going
to take time. I think support from this Committee, support from
the House as well for this kind of approach and really
encouraging it and encouraging agencies to do it is going to
continue to go a long way.
    It does require a change in thinking. It requires a change
in approach. But I think agencies are receptive to that, and we
are just going to keep at it.
    Senator Cornyn. I know patience is considered a virtue, but
in this instance, it seems like we have waited a long time
since 2007. And I would just ask you or any of the other
witnesses or people in the audience who are interested in this
topic to please send to me, Senator Leahy, Senator Franken, and
the Committee any other suggestions you may have, because the
litigation expense alone is something it seems like we would
want to avoid in these times of sequestration and concerns over
our fiscal condition here at the Federal Government.
    Ms. Nisbet. Yes.
    Senator Cornyn. But in terms of getting people access with
minimum hassle, minimal expense, and just--because it is
something I think we are going to have to change in terms of
the attitude on, as I suggested, customer service, one where
this is an obligation of government officials, not a nuisance
to be tolerated, which I fear so often is the attitude.
    Thank you very much.
    Ms. Nisbet. Thank you.
    Senator Franken. Thank you both for your testimony and
answering the questions.
    Director Pustay, last year a group of Minnesotans visited
my office to report problems with their FOIA requests. The
group was trying to make sure that federal contractors were
complying with the Davis-Bacon laws, but they experienced some
very long delays in recovering the records they had requested,
and at this point, I would like to enter the letter that I
wrote to you on that topic.
    [The letter appears as a submission for the record.]
    Senator Franken. Though some delays are unavoidable, I
think we are all in agreement here that we should try to
avoid--reduce avoidable delays. Actually, in the letter that I
got back from Judith Appelbaum, it says, ``Delays can also be
the result of long queues of FOIA requests at agencies, which
are typically processed in a first-in, first-out basis to be
fair to all requesters.''
    Is this backlog getting shorter?
    Ms. Pustay. The backlogs are tremendously shorter. That is
one of the key accomplishments of this administration. We have
reduced--when you compare the backlog from 2009 to the backlog
at the end of Fiscal Year 2012, the last 4 years, the backlog
was reduced nearly 45 percent, nearly half. So it is a
tremendous accomplishment, and during that time more than 2.5
million requests were processed by agencies.
    Senator Franken. And that is more requests than have been
done--is every year more----
    Ms. Pustay. Every year the number of requests is
increasing. And agencies are marshaling their resources and
matching that by processing more requests. And a 45-percent
reduction in the backlog in the past four years, I think, is a
tremendous accomplishment.
    Senator Franken. Does that translate into a shorter wait on
most requests?
    Ms. Pustay. Right. In addition, of course, as the backlogs
decrease, then that makes it--then the responses are also more
quick, are also more prompt. But we also had governmentwide
improvements in processing times, so there is a complementary
process that agencies are both reducing backlogs and responding
more quickly. And it is important to note that they are doing
that by keeping a high release rate. Records are being released
in full or in part in a really high percentage of cases. So,
overall, I think there are really solid, concrete improvements
from these past four years.
    Senator Franken. You spoke earlier about that when the OPEN
Government Act became law, effectively the rules in that became
rules of all the agencies, covering all the agencies on FOIA
requests.
    Ms. Pustay. Exactly.
    Senator Franken. And so the Chairman asked you about
agencies that have not adopted those regulations yet, but you
say they are in force. Actually, there are a number of agencies
which have updated their regulations and not necessarily done
so in compliance with the OPEN Government Act.
    Ms. Pustay. Right.
    Senator Franken. How is your office working to make sure
that agencies update their regulations in compliance with
existing law?
    Ms. Pustay. As just a general concept, of course, it is
important to have up-to-date regulations, so that is something
that we would encourage all agencies to do. And as I mentioned,
the Department of Justice is in the process of updating our own
regulations, and our thought all along has been that agencies
can use our regulations as a model for their own. So it is
something that we----
    Senator Franken. But you have not finished yours.
    Ms. Pustay. We are in the final stages of the process of
updating them, yes.
    Senator Franken. Okay. But they cannot very well use them
as a model if they are not complete.
    Ms. Pustay. No, not until they are done. That is right. Of
course.
    Senator Franken. Unless the model is incomplete
regulations.
    Ms. Pustay. Right. The----
    Senator Franken. That is kind of silly.
    Ms. Pustay. The idea behind updating regulations is--
updating our own regulations is that once they are finalized,
they will be a model for other agencies to use.
    Senator Franken. And how long have you been working on
those?
    Ms. Pustay. We have been working on those for a couple
years.
    Senator Franken. Okay.
    Ms. Pustay. It is a time-consuming process to update
regulations. That is why it is important to remember that
updating regulations was not required by the OPEN Government
Act. It was not required by the Attorney General Guidelines.
And those provisions have been fully implemented across the
government, and certainly at the Justice Department, and we
have done that through a wide range of efforts--training,
specialized guidance, reporting requirements and Chief FOIA
Officer reports, assessments of agency progress, a specialized
focus on some of the key provisions of the OPEN Government Act.
So through all those initiatives, we have been making sure that
the FOIA is understood by agency professionals across the
government and that we are giving them the tools they need to
implement the law correctly and also in accordance with the
Attorney General's Guidelines.
    Senator Franken. Well, I want to thank you for your
testimony and for answering questions, and Ms. Nisbet as well.
    We will go to the second panel now, so you are excused.
Thank you.
    Senator Franken. I would ask the second panel to take their
seats. Thank you, gentlemen.
    I would now like to introduce our second panel of
witnesses:
    Sean Moulton is director of Open Government Policy at the
Center for Effective Government. He is the author of several
reports on open government and transparency.
    Kevin L. Goldberg is an attorney and is here representing
the American Society of New Editors and the Sunshine in
Government Initiative.
    Thomas Blanton is the director of the National Security
Archive, an independent research institution at George
Washington University.
    Thank you all for joining us. Your complete written
testimonies will be made part of the record. You each have five
minutes for any opening remarks that you would like to make.
    Mr. Moulton, please go ahead.

 STATEMENT OF SEAN MOULTON, DIRECTOR, OPEN GOVERNMENT POLICY,
        CENTER FOR EFFECTIVE GOVERNMENT, WASHINGTON, DC

    Mr. Moulton. Mr. Chairman, Members of the Committee, thank
you for inviting me to testify today on the important topic of
fulfilling the promise of open government, the impacts of the
OPEN Government Act, and agency performance on FOIA. My name is
Sean Moulton. I am the director of Open Government Policy at
the Center for Effective Government--formerly OMB Watch--an
independent, nonpartisan policy organization. Improving citizen
access to public information has been an important part of our
work for almost 30 years. I would like to begin with a quick
look at FOIA implementation.
    Today we published our analysis of FOIA performance at 25
agencies, including most Cabinet-level departments. Our
analysis evaluated performance on processing of requests, the
rates of requests granted, and the use of exemptions.
    In Fiscal Year 2012, the Obama administration processed
more FOIA requests than in any year since 2004. Specifically,
the 25 agencies processed more than 512,000 requests, an eight
percent increase over the previous year. As a result, 12,000
fewer requests were still pending at the end of the year, a 12-
percent decline compared to 2011. Nevertheless, more than
80,000 requests remained unprocessed at year's end.
    In terms of granting requests, 19 of the 25 agencies fully
denied requests less than 10 percent of the time. The
Department of Homeland Security denied requests less than one
percent of the time. Not surprisingly, the Central Intelligence
Agency and State Department were the most likely to fully deny
requests, rejecting 59 percent and 44 percent, respectively.
    Overall, in 2012 agencies granted, in full or in part, 94
percent of requests processed. However, the administration's
performance continues to rely much more heavily on partial
releases rather than full releases. In fact, granting in full
declined to the lowest level on record to just under 41
percent. Conversely, partially granted requests are at a near
record high, and based on the information reported, we are
unable to say just how partial these releases were. We could be
talking about releasing 99 documents out of 100 or withholding
99 documents and only releasing one. Both would be a partial
grant.
    We also found that the total use of exemptions rose by 26
percent from the previous year. Three exemptions accounted for
almost three-quarters of exemptions used: personal privacy, law
enforcement personal privacy, and law enforcement techniques
for prosecution. Each were used approximately 100,000 times or
more.
    The use of the internal rules exemption, which was once
among the most frequently used, was almost entirely eliminated,
with a 92-percent reduction, part of an ongoing shift from a
2011 Supreme Court ruling that restricted the use of the
exemption. However, an increase in the use of the interagency
memos exemption suggests that some agencies may have expanded
it to withhold records previously claimed as internal rules.
    This overview of FOIA performance indicates that the
changes brought from the OPEN Government Act and the Obama
administration's new FOIA policies have made some positive
impact on FOIA implementation. But serious challenges and
disparities remain. We would like to offer six recommendations
to improve FOIA performance: improve compliance efforts, a
stronger ombudsman, expanded proactive disclosure, better
technology, congressional oversight, and expanded reporting.
    First, we believe that the Justice Department should be
more aggressive in overseeing FOIA compliance. There need to be
greater incentives for strong performance and stronger
penalties for failures to comply.
    Second, the Office of Government Information Services,
created under the OPEN Government Act, should be expanded and
strengthened. OGIS is already having a positive impact on FOIA
implementation, and we firmly believe the benefits would be
greater if its capacity were increased.
    Third, we recommend expanding FOIA's proactive disclosure
requirements to make more information available without needing
a filer request. Agencies should be required to routinely post
key information about how they are operating. Agencies should
also have to post records already released in response to other
FOIA requests.
    Fourth, agencies should leverage technology to build on the
tracking numbers required by the OPEN Government Act and
provide automatic status updates to FOIA requests.
Additionally, agencies should be able to receive requests and
post responses online. The new interagency portal, FOIA Online,
already offers many of these features, and it should continue
to be improved, and participation should be expanded to include
more agencies.
    Fifth, Congress should codify the presumption of openness,
the foreseeable harm standard, and the affirmative obligation
to disclose. We also encourage committees of jurisdiction to
continue to exercise assertive oversight into FOIA by holding
regular hearings, issuing letters of inquiry, and ordering GAO
studies.
    Finally, we recommend expanded reporting requirements to
describe how much information is being withheld under these
partial releases, such as a record or page count of what is
being released and what is being withheld.
    Like the Committee, the Center for Effective Government is
committed to improving FOIA and ensuring that federal agencies
provide timely and complete responses to the public's requests
for information. I look forward to the Committee's questions.
Thank you.
    [The prepared statement of Mr. Moulton appears as a
submission for the record.]
    Senator Franken. Thank you, Mr. Moulton.
    Mr. Goldberg.

    STATEMENT OF KEVIN M. GOLDBERG, ESQ., FLETCHER, HEALD &
 HILDRETH, PLC, ARLINGTON, VIRGINIA, ON BEHALF OF THE SUNSHINE
   IN GOVERNMENT INITIATIVE, AMERICAN SOCIETY OF NEWS EDITORS

    Mr. Goldberg. Thank you. Mr. Chairman, Members of the
Committee, I am pleased to represent the Sunshine in Government
Initiative and the American Society of News Editors, because I
recall how optimistic we all felt almost eight years ago when
we first started working with Congress to reform FOIA.
    Eight years ago, the starting point for what would become
the OPEN Government Act was Senator Cornyn's desire to create
an enforcement mechanism like he had enjoyed as the Attorney
General of Texas. Though not everybody may agree that
``everything is better in Texas,'' we did think Senator Cornyn
was onto something here, and the Austin American Statesman has
actually agreed and proven that.
    Our optimism grew when President Obama proclaimed that his
administration would be the most transparent administration
ever. But these eight years have not brought the desired
changes to FOIA processing itself. In the words of what I
understand to be Chairman Leahy's favorite Grateful Dead song,
the public still sees a black muddy river that rolls on
forever.
    Why? Well, that is because our original effort was quickly
diluted to include several less effective provisions. I will
first highlight those that have worked.
    We believe the Office of Government Information Services
has been successful. OGIS has helped avoid bigger disputes and
avoid litigation when agencies fail to communicate with
requesters. If anything, this office needs more power and
resources to perform an enforcement role.
    We also are pleased with the fix to the so-called
Buckhannon tax to make it easier to recover attorneys' fees
when challenging a FOIA denial in court.
    There has been a lot of discussion about the increase in
litigation. We actually view this as somewhat of a good thing.
It is clear evidence that requesters use the OPEN Government
Act to enforce their rights. But excessive secrecy, of course,
still remains. Examples include the withholding of Office of
Legal Counsel memoranda, and a recent change by the U.S.
Marshals Service, which has begun ignoring a longstanding
federal appellate decision requiring the disclosure of mug
shots.
    The procedural of processing has also been a mixed bag. The
major enforcement element from the OPEN Government Act--waiving
processing fees when an agency fails to meet the 20-day
response deadline--has not kept agencies in line. But
enforcement issues aside, FOIA processing simply needs an
infusion of leadership, resources, and technology.
    I will praise the administration here. It has not received
enough credit for harnessing technology to make processing more
efficient. It just needs to go a little further, and it may
need some help from Congress to get there.
    The Justice Department's FOIA.gov Web site is a step in the
right direction, but as Justice Department officials told the
GAO last year, FOIA.gov was never intended to manage FOIA
requests. It is simply a tool to hold agencies accountable for
meeting their FOIA responsibilities.
    The new multi-agency FOIA Online system offers more promise
by creating a freely searchable, online data base of already
disclosed records that will advance the proactive disclosure of
frequently requested records. It will create a streamlined
electronic tracking system, fulfilling a mandate of the OPEN
Government Act, that could save as many as 30 minutes per
request by automating the logging and confirmation of requests.
    Now, if you look at the over 650,000 requests in Fiscal
Year 2012, that would offer a savings of about 325,000 person-
hours, possibly the equivalent, if you want to look at it this
way, of creating 163 new FOIA officers. It is also a mechanism
to allow agencies or components of agencies to more freely talk
to one another to reduce the tolling of every individual
request.
    So against this backdrop of moderate success, greater
disappointment, and vast potential, we ourselves offer five
steps for congressional action.
    Number one, strengthen OGIS by increasing its funding and
its independence authority to hold other agencies accountable.
    Two, hold OGIS itself accountable. OGIS should exercise its
advisory opinion power to create a record that requesters
themselves can use to hold agencies accountable.
    Three, hold individuals accountable. Information disclosure
should be a part of every Federal Government employee's overall
performance review.
    Four, codify the disclosure-friendly standard laid out by
Attorney General Holder that information should only be
withheld if foreseeable harm would result from its disclosure.
    And, five, save taxpayers some money by encouraging
agencies to switch to FOIA Online as their existing software
contracts expire.
    The proposals we suggest are a vital part of Congress'
ongoing oversight efforts and are necessary to avoid finding
ourselves back here five, six, eight years from now summing up
an unchanged Freedom of Information Act landscape with the
lamentations of one of my musical icons, Bruce Springsteen, who
wrote, ``somewhere along the line, we slipped off track, Going
one step up and two steps back.''
    Mr. Chairman, we appreciate working with you to ensure
transparency moves two steps forward for every step back. Thank
you for the opportunity to testify today. I look forward to
answering your questions.
    [The prepared statement of Mr. Goldberg appears as a
submission for the record.]
    Senator Franken. Thank you, Mr. Goldberg.
    Mr. Blanton.

   STATEMENT OF THOMAS BLANTON, DIRECTOR, NATIONAL SECURITY
     ARCHIVE, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, DC

    Mr. Blanton. Thank you very much, Mr. Chairman and all the
terrific Committee staff who have helped make this hearing
happen and this oversight happen. It is a lot of work, I know.
    I have a prepared statement already for the record, and I
have also brought copies of the brand-new Freedom of
Information Act audit that we just posted this morning to
celebrate this hearing and Sunshine Week. It has some new
numbers that might correct the numbers that Senator Leahy and
Senator Grassley used on the number of agencies. But I want to
use the limited time here just to address the Justice
Department presentation, which I wish we had Glenn Kessler of
the Washington Post and his renowned Fact Checker column with
us, because while that presentation was happening, I could just
see the little symbols of the Pinocchios just hitting the page,
because the stretches that were involved there were really
extraordinary.
    I think the Justice Department might be the only player in
the entire freedom of information environment that thinks new
regulations are just optional, that you do not really need them
to make the system work.
    You go to any training session of Government Freedom of
Information Officers, and the senior folks up on the podium
say, ``Guys, look at your regs. That is the basis of your
implementation. Do not worry about the statute. And that AG
memo? Ah, you know, do not worry about that. Your regs, that is
what counts.''
    So having a list of agencies--this is the red--that have
not updated their regulations since Congress passed the OPEN
Government Act of 2007 is just--it is a tragedy and a farce.
    The folks who disagree with the Justice Department on the
need for new regs include federal judges who ruled against the
government in the National Park Service case because the agency
involved had not updated its regs to charge fees.
    The folks that disagree include former Attorney General
Janet Reno, who, when she did a memo to the agencies to try to
get a presumption of openness in there, said, ``Change your
regs to fit the new policy.''
    This Attorney General failed to do so in a memo drafted by
that office of the folks who were just testifying.
    The people who disagree with the Justice Department include
the entire open government community that see new across-the-
board regs as the opportunity for this Congress and this
administration to really bring everybody up to the standard of
openness that we need to expect.
    Among the folks who disagree but are way too polite to say
so is the Office of Government Information Services, because
OGIS has done a systematic effort to comment on every new
agency FOIA regulation proposal because it is vital for OGIS'
success that they be mentioned in those regs as a core resort
for every requester and for every agency to figure out
disputes.
    So the entire community of folks, government and
requesters, who care about the Freedom of Information Act
disagree with the Justice Department on this. And yet that
piece of litigation that she would not comment on is the most
direct attack by this government on the OPEN Government Act of
2007. They are attempting to eviscerate the one single
enforcement provision, which is you cannot charge fees if you
delay your answer. It was very simple. As Senator Cornyn and
Senator Leahy's idea, it was a great idea. It was one of the
first pieces of teeth that we have seen in the law anytime,
anywhere. The Justice Department is trying to gut that out.
That is why they will not comment on that lawsuit.
    It is absurd. There has never been a litigation review by
the Justice Department to look at what the Attorney General or
the President is saying about open government and trying to
look at those cases and figure out: What can we settle? What
can we get rid of? What can we disclose? That is why litigation
is going up, not down, despite the best efforts of OGIS, which
is dramatically, I think, improving the requester experience
with the freedom of information process.
    And then another Pinocchio. That release rate, I think I
heard it five times in that presentation: 94-percent release
rate. The only way the Department of Justice gets to that
number is by leaving out nine of the 11 reasons the government
does not answer your FOIA requests. Those other nine reasons
are: fee-related issues that do not get resolved or the agency
has a ``No records'' response or it sends the request to
another agency for a referral. If you add in those reasons why
FOIA requesters go away unsatisfied, your actual response rate
gets down to a more pedestrian, more realistic 55, 60 percent,
roughly.
    So that is the kind of number we ought to be getting out of
the Justice Department. We are not getting them. We are getting
hyped-up numbers that you cannot really rely on. You are
getting a secret sneak attack on the OPEN Government Act in the
courts. And you are getting claims that just do not hold
scrutiny. You get no implementation on new freedom of
information regulations.
    So I could say it is bad news, but we have had three
agencies just since December who have updated their regs and
added into the green side of our ledger. But as you pointed
out, Mr. Chairman, updated regs do not necessarily mean good
regs, because only one of those three agencies actually
included OGIS in their regulations, language about dispute
resolution. We have got to do more. We have got to order
agencies to update their regs along a best practices template.
In my written statement, I have got the top 10 best practices
we think ought to be in every reg.
    OGIS itself has done a series of excellent comments on
different proposed regulations that talk about how agencies
should be running their processes to make them better, to make
them more responsive, to avoid disputes and litigation.
    Congress could order this. There is some energy over on the
House side. The Issa-Cummings bill that Senator Grassley
mentioned actually would order agencies to do this within 180
days. It does not take two years. It does not take three years.
The reason the Justice Department is still struggling with its
own regulations is its first draft was so bad that all of us
had to gather and put a stake through the heart to keep that
set of regulations in the casket so it would not come out and
bite us at night. Terrible regulations. And I hope--the new
ones are not likely to be a better model either.
    So Congress has got an opportunity. I think the President
has a real opportunity. We have advocated that President Obama
put this in the next action plan for the Open Government
Partnership, that agencies should update their regulations and
include these best practices and the excellent suggestions that
Kevin and Sean and many others in our community are making.
    I am just really glad that this Committee has decided to
take on this issue, to have this oversight, and to bring some
pressure to bear.
    And my final point would be--and I wish Senator Leahy was
here, and Senator Grassley. They talked about maybe doing a
subpoena for those Office of Legal Counsel memos. I think the
next nominee for a Justice Department confirmation position
that comes up here ought to be told, ``I am sorry. Your
confirmation is not going to go through until you turn over the
OLC memos.'' I think maybe Senator Leahy sits on an
Appropriations Committee. I just remember when a Secretary of
State named Jim Baker showed up in front of the Appropriations
Committee, and Senator Leahy said, ``Don't you have a big FOIA
backlog? '' And Secretary Baker went back to the Department and
found a couple million dollars to clean out the backlog. It
takes some pressure. It takes leverage of money. It takes
holding up some confirmations. And yes, it might take a
subpoena.
    But I would love the opportunity, and I ask your patience,
Mr. Chairman, if we could also submit some further comments to
the record just to take into account the responses of the
Justice Department, which I think are part of the problem.
    Thank you.
    [The prepared statement of Mr. Blanton appears as a
submission for the record.]
    Senator Franken. Yes, absolutely.
    [The comments appears as a submission for the record.]
    Senator Franken. Well, I would like, Mr. Moulton and Mr.
Goldberg, your reactions to Mr. Blanton's testimony there. He
was basically saying--when he was talking Pinocchios, he is
talking--we know what Pinocchio did. He lied.
    Mr. Blanton. His nose stretches.
    Senator Franken. Well, the nose stretched because he lied.
    [Laughter.]
    Senator Franken. So let us be clear about what you are
saying, which is that the testimony of the first two witnesses
was not truthful.
    Mr. Blanton. Not the first two witnesses. Just the first.
    Senator Franken. Oh, the first witness.
    Mr. Blanton. Yes. Thank you.
    Senator Franken. Do you gentlemen have any reaction to
that?
    Mr. Moulton. I was disappointed by Ms. Pustay's testimony
because I felt it was extremely one-sided. It was very
serpentine in bending over backward to find all the highlights
and all the positives and talked about none of the clear
weaknesses, and I do think there was some omission on those
points. The high release rate, even if you do not adjust--or
even if you do adjust for these other reasons that people go
away or that the request does not get processed----
    Senator Franken. So the release rate throughout those that
were denied because of some of the normal reasons to exempt
things. Is that right?
    Mr. Moulton. Yes. Tom is talking about----
    Senator Franken. So is that a normal way to look at the
release rate, to take out those that are exempted because of
the list of normal exemptions?
    Mr. Moulton. It is a way, and there is a certain validity
to it if you are trying to figure out the exemptions and how
often the exemptions are being used, because the others are not
about exemptions. They are about disagreements on fees. There
are still, as Tom is pointing out, very big concerns in these
other denials as to whether or not the system is still being
gamed.
    Senator Franken. So you said in your testimony on the list
of improvements that need to be made, one was an improvement by
Congress in oversight.
    Mr. Moulton. Yes.
    Senator Franken. So how would you suggest that we do that?
    Mr. Moulton. Well, I think Tom is raising some good points
about, you know, really holding the Department of Justice's
feet to the fire in terms of their follow-through with their
responsibility to oversee agencies, their regulations, and
their compliance with the law and the mandate to requests
substantively inside the statutory 20-day deadline.
    Senator Franken. Now, Mr. Blanton was recommending, it
sounded like, more resources put toward ending the backlog or
just in terms of fixing some of these problems and holding up a
nomination toward that end. We are currently under a sequester,
and we do have budgetary limits, and I am not sure that we
would want to hold up a nomination by demanding that more
resources be applied when we are kicking kids off of Head Start
and we are limiting women, infant, and children and their food.
Would you like to say something?
    Mr. Blanton. In Kevin Goldberg's testimony, he has a
wonderful suggestion for dealing with exactly this problem,
which is if the FOIA Online portal really reached its full
potential, it would be the equivalent in time savings on
freedom of information requests of adding 163 new Freedom of
Information Officers without a single additional dollar of our
resources being--I think this is--this goes right to heart of
why the new technologies can address some of these issues
without us getting caught in the resource trap that we are all
very well aware of.
    Senator Franken. Mr. Goldberg.
    Mr. Goldberg. Thank you, Tom.
    [Laughter.]
    Mr. Goldberg. I should just stop there.
    I cannot possibly speak with more authority than either of
these gentlemen on that topic. I will just hit three things
that stood out to me.
    I was not going to jump all over the lack of agency
implementation of the OPEN Government Act changes, but then I
think I will, because something was running through my head
with regard to the idea that Congress should not--or, I am
sorry, the agency should not be required to do this because it
was not required, you know, in the law itself. And a problem
with that is that some of the regs are actually now out of sync
with the changes in the Act. They were wholesale changes that
now create a conflict. That sort of demands----
    Senator Franken. The new regs that have been promulgated or
the old regs?
    Mr. Goldberg. No, no. The regulations that were not
changed.
    Senator Franken. Oh, okay.
    Mr. Goldberg. And then, you know, once the Act changed the
language of the law itself, you have regs that are in conflict
and simply need to be changed. And I do not buy the idea that
you should be required to make a change before you make the
change. I have the words of my wife ringing in my ears right
now, and I am going to go on record under oath saying,
``Brenda, I love you, you are right. I should not have to be
asked to take out the trash.''
    You know, I get that all time. ``I should not have to ask
you to do this.'' And it is true. If you view the interaction
between the agencies----
    Senator Franken. So we have had Jerry Garcia, Bruce
Springsteen, and your wife now in the record.
    [Laughter.]
    Mr. Goldberg. I am trying to cover all my bases here.
    I mean, if you think about the interplay between the
agencies as a relationship, the relationship will work better
if everybody works to their potential and does things
voluntarily to help out. They should not have to wait for the
others to press them on it. We all know it is true.
    You know, and I will go out as well on one last topic, back
to oversight, which is I do think oversight from this Committee
and from the House Committee and from any Committee that can
possibly oversee FOIA is incredibly important. We come up here
once a year, quite often, for a very important hearing during a
very important--to me--week since ASNE is one of the creators
of Sunshine Week. And I think that is good. But you hear a lot
of statements, you hear a lot of promises, and then there is
not a lot of follow-through to make sure those promises have
been met until the next year.
    I think the letter from Chairman Issa and Representative
Cummings was a very good example of how to hold people's feet
to the fire, listen to what was said, go back through the
testimony, look at what they have promised, look at where they
are saying they are making progress, and specifically hone in
on that and make sure they have kept those promises. That is
what I would do.
    Senator Franken. Well, thank you. Thank you, gentlemen, for
your testimony. And I will note that we will hold the record
open for one week for submissions of questions for the
witnesses and for other materials.
    I want to thank the Ranking Member and Senator Cornyn and
the Chairman for being here today, and this hearing is now
adjourned.
    [Whereupon, at 12 p.m., the Committee was adjourned.]


                        A P P E N D I X

              Additional Material Submitted for the Record

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              Prepared Statement of Chairman Patrick Leahy

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     Prepared Statement of Melanie Ann Pustay, Director, Office of
     Information Policy, U.S. Department of Justice, Washington, DC

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  Prepared Statement of Miriam Nisbet, Director, Office of Government
  Information Services, National Archives and Records Administration,
                             Washington, DC

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 Prepared Statement of Sean Moulton, Director, Open Government Policy,
            Center for Effective Government, Washington, DC

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   Prepared Statement of Kevin M. Goldberg, Esq., Fletcher, Heald &
   Hildreth, PLC, Arlington, Virginia, on behalf of the Sunshine in
        Government Initiative, American Society of News Editors

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   Prepared Statement of Thomas Blanton, Director, National Security
         Archive, George Washington University, Washington, DC

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                               Questions


    Questions submitted by Senator Patrick Leahy for Melanie Pustay

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     Questions submitted by Senator Patrick Leahy for Miriam Nisbet

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   Questions submitted by Senator Charles Grassley for Miriam Nisbet

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     Questions submitted by Senator Amy Klobuchar for Sean Moulton

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    Questions submitted by Senator Amy Klobuchar for Kevin Goldberg

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                                Answers

 Responses of Melanie Pustay to questions submitted by Senators Leahy
                              and Grassley

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Responses of Miriam Nisbet to questions submitted by Senators Leahy and
                                Grassley

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 Responses of Sean Moulton to questions submitted by Senator Klobuchar

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   Responses of Kevin M. Goldberg to questions submitted by Senator
                               Klobuchar

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                Miscellaneous Submissions for the Record

 ``Texas Gets High Marks Regarding Transparency in Legislative Matters
 but Still Needs More Sunshine,'' editorial, Austin American-Statesman

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Freedom of Information Act (FOIA), study by Associated Press (AP),
                             March 11, 2013

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Anne L. Weismann, Citizens for Responsibility and Ethics in Washington,
                       testimony, March 13, 2013

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Office of Government Information Services (OGIS), 2013 Recommendations,
                             March 13, 2013

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 Office of Government Information Services (OGIS), cover letter, March
                                12, 2013

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 Letter from Senator Al Franken to Melanie A. Pustay, Director, Office
         of Information Policy, Washington, DC, October 9, 2012

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                 Additional Submissions for the Record

    Submissions for the record not printed due to voluminous
nature, previously printed by an agency of the Federal
Government or other criteria determined by the Committee, list:
        OGIS 2013 Report for FY 2012: Building a Bridge Between
        FOIA Requesters & Federal Agencies; https://
        ogis.archives.gov/Assets/OGIS+Reports/
        OGIS+Report+March+2013.pdf