[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                              JUNE 2, 2015


                           Serial No. 114-80


Printed for the use of the Committee on Oversight and Government Reform


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                     JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico

                    Sean McLaughlin, Staff Director
                 David Rapallo, Minority Staff Director
                          Katy Rother, Counsel
                    Sharon Casey, Deputy Chief Clerk
                            C O N T E N T S

Hearing held on June 2, 2015.....................................     1


Ms. Sharyl Attkisson, Investigative Reporter
    Oral Statement...............................................     6
    Written Statement............................................     8
Mr. Jason Leopold, Investigative Reporter, Vice News
    Oral Statement...............................................    10
    Written Statement............................................    12
Mr. David E. McCraw, Vice President and Assistant General 
  Counsel, The New York Times
    Oral Statement...............................................    16
    Written Statement............................................    18
Ms. Leah Goodman, Investigative Reporter, Newsweek
    Oral Statement...............................................    20
    Written Statement............................................    23
Mr. Terry Anderson, Adjunct Professor, University of Florida
    Oral Statement...............................................    27
    Written Statement............................................    30
Mr. Tom Fitton, President, Judicial Watch
    Oral Statement...............................................    66
    Written Statement............................................    69
Ms. Cleta Mitchell, Partner, Foley & Lardner LLP
    Oral Statement...............................................    75
    Written Statement............................................    77
Mr. Nate Jones, Director of the Freedom of Information Act 
  Project, National Security Archive
    Oral Statement...............................................   109
    Written Statement............................................   111
Ms. Lisette Garcia, FOIA Resource Center
    Oral Statement...............................................   121
    Written Statement............................................   123
Mr. Gabriel Rottman, Legislative Counsel/Policy Advisor, American 
  Civil Liberties Union
    Oral Statement...............................................   131
    Written Statement............................................   133
Ms. Anne Weismann, Executive Director, Campaign for 
    Oral Statement...............................................   143
    Written Statement............................................   145


Chaffetz Statement...............................................   168
2009-01-21 Presidential Documents White House Memo FOIA..........   172
2009-04-15 Craig-White House Memo re: Doc Requests...............   174
1988-09-01 Markman DOJ MEMO re WH Records in Agency Files........   175


                         Tuesday, June 2, 2015

                  House of Representatives,
      Committee on Oversight and Government Reform,
                                           Washington, D.C.
    The committee met, pursuant to call, at 2:10 p.m., in Room 
2154, Rayburn House Office Building, Hon. Jason Chaffetz 
[chairman of the committee] presiding.
    Present: Representatives Chaffetz, Duncan, Jordan, Walberg, 
Amash, Gosar, Gowdy, Lummis, Meadows, DeSantis, Mulvaney, Blum, 
Hice, Russell, Carter, Grothman, Hurd, Palmer, Cummings, 
Norton, Clay, Lynch, Connolly, Duckworth, Lawrence, Lieu, 
Watson Coleman, Plaskett, DeSaulnier, Welch, and Lujan Grisham.
    Chairman Chaffetz. The Committee on Oversight and 
Government Reform will come to order.
    And, without objection, the chair is authorized to declare 
a recess at any time.
    I appreciate you all being here for our hearing, ``Ensuring 
Transparency Through the Freedom of Information Act.'' We have 
just completed votes on the floor, and I am sure we will have 
some members as they hustle back here to the hearing, but I 
wanted to get started.
    We have a very distinguished couple of panels. We 
appreciate those that are participating and sharing their 
perspectives with us.
    I would remind the committee that we are not only the 
Oversight Committee but we are also Oversight and Government 
Reform. The goal of these hearings is to come to a place where 
we can actually reform this process so that it works, no matter 
who is in the White House, no matter what administration is 
there, that we get this part of the equation right.
    My passion for this comes from the idea that government 
should be open and transparent. It is what separates the United 
States of America from everybody else. We are self-critical. We 
do take things and look back, and sometimes those things are a 
little bit embarrassing. But because it might be a little bit 
embarrassing is not enough to withhold information from the 
public and the public's right to know. It is the heart of what 
we do as a committee, it is what we are supposed to be doing as 
the United States Congress, and it is what we are supposed to 
be doing as a country.
    And nothing makes government more accountable than making 
its actions open and transparent to those that are paying the 
bills. The Freedom of Information Act, otherwise known as FOIA, 
gives the public a tool to gain insight into how their 
government functions--what it did well, what it didn't do well, 
what it should have done, what it shouldn't have done. And, 
clearly, in retrospect, looking back with 20/20 vision, you can 
go back with great clarity, but that is why it is important to 
do this and understand.
    A request for FOIA must simply be in writing and reasonably 
describe the records being requested. That is it. That is the 
way, at least, it should be. But navigating the FOIA process is 
complicated and varies across government agencies. Something 
like 550,000 times in just the time since I have served in 
Congress, which is the same time that President Obama took 
office, 550,000 times FOIAs were rejected because there was 
some sort of exemption that took place.
    In responding to a FOIA request, each agency has its own 
set of standards which may or may not be updated to reflect the 
current law. One of the great frustrations is, agency by 
agency, there seem to be different standards and different 
practices. And when we get to the hearing tomorrow, that is one 
of the things we want to explore with our witnesses.
    What one agency deems to be a reasonable description of 
documents requested may not be adequate for another agency. For 
example, the State Department rejected a request because it 
didn't include the contract number, when the FCC, for instance, 
doesn't require that information at all.
    Congress must ensure that, when it comes to FOIA, agencies 
are following the law. The FOIA statute requires agencies to 
give a preliminary response within 20 business days of the 
request. In practice, agencies take the 20-day time limit 
merely as a suggestion rather than a rule, and most of it is 
just laughed off and doesn't even come close to meeting the 20-
day rule as prescribed by law.
    Some agencies don't even bother to go through the process 
of responding at all within the 20 days. Syracuse University 
recently learned this the hard way when only 7 of 21 agencies 
provided a satisfactory response to the exact same request for 
records kept by every FOIA office. The inconsistency is 
amazing. Three agencies didn't even bother to respond at all. 
The unresponsive agencies were the Bureau of Alcohol, Tobacco, 
and Firearms; the Department of Justice Executive Office of the 
United States Attorneys; and the Department of Justice National 
Security Division.
    The FOIA law requires documents to be released unless those 
documents fall into the exemptions outlined in the statute, and 
exemptions are far narrower than most agencies claim. The 
committee reviewed redacted and unredacted versions of 
documents from the FCC and found numerous redacted emails with 
no statutory justification, in our opinion. Of note, the FCC 
redacted the chairman's initials from all documents under a 
privacy exemption, while failing to redact email addresses and 
other contact information for third parties--inconsistent, to 
say the least.
    We also found some agencies redacted basic information 
already available to the public. Redacting information that can 
easily be found on an agency's Web site does not suggest a 
government interested in ensuring transparency. For example, in 
2011, Immigration and Customs Enforcement at the Department of 
Homeland Security provided the National Security Archive with 
111 pages of documents already available to the public, 
including news clippings, media alerts, even congressional 
testimony. Yet, in those public documents, ICE chose to redact 
the information like the name of the board agent that sang the 
national anthem at the conference.
    These types of redactions not only have no legal basis but 
they defy common sense, and they make it more timely, more 
expensive to go through the process of redacting the person who 
sang the national anthem than just allowing the American people 
to know who that person was.
    So requesters who actually receive a response must 
literally read between the blacked-out lines. And every time we 
see such questionable redactions, we have to wonder: If they 
are hiding this, what else are they hiding?
    Congress intended for FOIA to increase accountability by 
giving taxpayers a view into the inner workings of their 
government. And it is not just taxpayers; it is the media, as 
well. That no longer appears to be the case.
    We have two full panels of witnesses here today with 
extensive professional experience with the Freedom of 
Information Act, and all have at one time or another struggled 
with the FOIA process. I look forward to hearing from all of 
our witnesses about their experiences with FOIA and entertain 
suggestions that they might have to ensure disclosure of 
information is timely, it is accurate, it is routine, and 
something that is more common practice than it is here today.
    So we appreciate all the witnesses and look forward to a 
good, robust hearing. We have three panels--two today, one 
    And, with that, I would now like to recognize the 
distinguished ranking member, Mr. Cummings of Maryland, for his 
opening statement.
    Mr. Cummings. Thank you very much, Mr. Chairman, for 
calling today's hearing as well as our hearing tomorrow on the 
Freedom of Information Act.
    FOIA is the cornerstone of our open-government laws, and it 
has been used by countless journalists, watchdog groups, and 
citizens to obtain information about their government and its 
actions. FOIA helped the families of 9/11 victims trace the 
actions and whereabouts of their loved ones. FOIA led to the 
discovery in 2002 that one in five FDA scientists felt 
pressured to approve unsafe drugs. And following the shooting 
of Michael Brown in Ferguson, Mississippi, FOIA helped 
highlight the transfer of military equipment to police 
    We will hear today from witnesses who use FOIA and know 
firsthand how important it can be.
    I appreciate each of you taking the time to share your 
experiences with us, and I look forward to your testimony.
    Today I would like to make one simple but critical point: 
Congress cannot continue to slash agency budgets, starve them 
of resources, cut their staffs, and all the while expecting 
them to tackle the increasing number of FOIA requests that are 
now at an all-time historic high.
    Let me give you some specifics.
    First, the number of FOIA requests has skyrocketed from 
2009 to 2014. In 2009, when President Obama took office, there 
were about 558,000 FOIA requests submitted to Federal agencies. 
By 2014, that number rose dramatically to more than 714,000. 
From 2009 to 2014, the overall number of FOIA requests 
submitted to Federal agencies increased by 28 percent, with new 
records set in each of the past 4 years in a row.
    The problem is that the total number of FOIA personnel has 
now dropped to its lowest point at any time since President 
Obama took office. In 2009, the number of full-time FOIA staff 
at Federal agencies was 4,000. In 2014, the number of full-time 
FOIA staff dropped to 3,838, a decrease of about 4 percent. Is 
there any wonder why we have FOIA backlogs?
    The number of requests has been skyrocketing, but agency 
budgets have been slashed by draconian sequestration cuts, 
resulting in fewer staff to handle impossible workloads. These 
trends are simply not sustainable if we truly want a FOIA 
system that works for the American people.
    With that said, I know there is one thing that every member 
of this committee agrees on, and that is the need for 
legislation to update and improve FOIA. On February 2, 
Representative Darrell Issa, our former chairman, and I joined 
together on a bipartisan basis, introduced a FOIA Oversight and 
Implementation Act, and we passed it out of our committee 
unanimously several months ago.
    This legislation would codify the presumption of openness 
that President Obama put in place by the executive order on his 
first day in office. The bill would also codify Attorney 
General Holder's directive that the Department of Justice will 
not defend FOIA denials unless agencies reasonably foresee that 
disclosures would harm an interest protected by a FOIA 
exemption or if disclosure is prohibited by law.
    The bill would also make other improvements. It would put a 
25-year sunset on Exemption 5 of FOIA, the deliberative process 
exemption, and limit the scope of records that agencies could 
withhold under the exemption. It would require the Office of 
Management and Budget to create a central portal to allow FOIA 
requests to any agency through one Web site. And it would 
strengthen the independence of the Office of Government 
Information Services by allowing it to submit testimony and 
reports directly to Congress.
    Our bill has widespread support. A collection of 47 open-
government groups supports the bill. Yet, still, it has not 
been scheduled for a floor House vote. I believe the House 
should pass the bill quickly so that we can work with the 
Senate to get it to the President's desk.
    With that, let me close by reading from an editorial that 
was published in the New York Times on February 18 which said 
this, ``For Republicans, this is a rare chance to log a 
significant bipartisan accomplishment in the public interest, 
one that Mitch McConnell, the Senate majority leader, and Mr. 
Boehner should probably seize. The availability of information 
that sheds light on the workings of government is essential for 
a healthy democracy. Strengthening the law will help ensure the 
basic principles of transparency are not a matter of executive 
    Mr. Chairman, I hope that we can seize this opportunity, 
and I hope that--again, I want to thank you for calling this 
    And, with that, I yield back.
    Chairman Chaffetz. I thank the gentleman.
    I will hold the record open for 5 legislative days for any 
members who would like to submit a written statement.
    Chairman Chaffetz. We will now recognize our first panel of 
    Sharyl Attkisson is an award-winning investigative 
journalist. During her 30-year career, she has been a 
correspondent or anchor at CBS News, PBS, CNN, and in local 
news. Her investigations have covered a wide range of topics, 
from green energy, to earthquake aid in Haiti, to lobbying in 
Washington, D.C. She has won five Emmy Awards for her 
investigative work, and in 2012 she earned both the Emmy Award 
and the Edward R. Murrow Award for Excellence in Investigative 
Reporting for her work on Operation Fast and Furious. In 
addition to her Emmy Award wins, Ms. Attkisson has been 
nominated a further seven times.
    Jason Leopold is an investigative reporter with VICE News. 
During his 20 years as a reporter, he logged stints at the Los 
Angeles Times, Dow Jones Newswire, and other prominent 
organizations. His work has included extensive reporting on 
national security issues, civil liberties, Guantanamo Bay, as 
well as Enron. In 2013, he was awarded a crowd-funding grant by 
the Freedom of Press Foundation to continue his Freedom of 
Information Act work and coverage of Guantanamo Bay. We are 
pleased to have him here.
    David McCraw currently serves as vice president and 
assistant general counsel for The New York Times Company. With 
13 years at the Times, he is responsible for the company's 
litigation matters and providing counsel to the company on 
freedom of information and access to the courts. He has 
previously served as the deputy general counsel for the New 
York Daily News. As lead litigation attorney for FOIA lawsuits 
brought by the Times, Mr. McCraw has been involved in the suits 
seeking documents on issues including unsafe workplaces, 
Department of Justice justifications for drones strikes, and 
the names of companies permitted to trade with sanctioned 
    Leah Goodman is an investigative reporter at Newsweek. She 
has written for Bloomberg, Forbes, the Financial Times, 
Barron's, The Wall Street Journal, and CNN Fortune. 
Additionally, she has been a fellow at the Center for 
Environmental Journalism at the University of Colorado at 
Boulder. For Newsweek, Ms. Goodman writes about money, 
politics, and institutional cultures of corruption. We are 
pleased that she is here, as well.
    We are also honored to have Mr. Terry Anderson, who is a 
retired journalist and former foreign correspondent in Asia, 
Africa, as well as the Middle East. He served as the chief 
Middle East correspondent for the Associated Press and is a 
former Marine and Vietnam veteran.
    We thank you, sir, for your service--especially for the 
time in 1985, while working for the Associated Press, Mr. 
Anderson was abducted in Beirut and held captive for nearly 7 
years, an experience he recounted in his best-selling book, 
``Den of Lions.'' He is the honorary chairman of the Committee 
to Protect Journalists and has spent more than 10 years as a 
journalism professor at Syracuse University.
    We welcome you all.
    Pursuant to committee rules, all witnesses are to be sworn 
before they testify. If you would please rise and raise your 
right hands, we would appreciate it.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Thank you.
    Let the record reflect that all witnesses have answered in 
the affirmative.
    And, at this time, we are going to recognize--we will start 
with Ms. Attkisson.
    We would appreciate you limiting your testimony to 5 
minutes, but we are pretty liberal with that. As long as you go 
over but don't go over too much, we will use some discretion 
here. But we want to leave time for some questions; we also 
have a second panel after this. But we would love to get your 
candid perspective, and I know that is hard to wrap up in 5 
minutes, but let's give it a try.
    And we will start with Ms. Attkisson. You are now 
recognized. Thank you.


    Ms. Attkisson. Plenty of time for a journalist that 
sometimes had to do stories in 2 minutes on the news 
    Good afternoon.
    The Freedom of Information Act, or FOIA, should be one of 
the most powerful tools of the public and the press in a free 
and open society. Instead, it's largely a pointless, useless 
shadow of its intended self. Federal bureaucrats paid tax 
dollars to act on our behalf routinely break the law with 
impunity as if--treating public material as if it's 
confidential, secret information to be controlled by a chosen 
few. They withhold it from the public, its rightful owners, 
while sharing it with select partners such as corporations or 
other so-called stakeholders.
    In 2013, the Defense Department finally responded to a FOIA 
request I'd made in 2003--too late to be of use for the news 
story I was working on back then, 10 years before. For some 
perspective, my daughter was 8 years old when I made the FOIA 
request. By the time I got a response from the Pentagon, she 
was going off to college.
    Last October, I filed a FOIA request when CDC was not 
forthcoming about the epidemic of Enterovirus EV-D68, possibly 
linked to the deaths of 14 children in the U.S. and the 
paralysis of 115 children. In December, long past the supposed 
20-day response time allowed under FOIA, I asked CDC about the 
status. CDC answered, incredibly, that they were just far too 
busy with the Ebola crisis to process my FOIA. But even now, 
with the Ebola crisis excuse gone, CDC still hasn't provided a 
single page of enterovirus information 8 months after I asked.
    Filing a lawsuit to force the government to comply with 
FOIA law takes too much time and money, and the agencies still 
play the delay game. In court, the Justice Department, itself 
one of the worst FOIA offenders, spends our tax dollars 
defending violators in their effort to keep public documents 
secret. In one lawsuit I filed, the FBI spent months repeatedly 
claiming that it didn't have information that it had previously 
acknowledged in writing that it did have.
    I also filed a lawsuit for healthcare.gov material in 2012. 
Apparently, the government didn't even bother to start looking 
for it until I filed a lawsuit. Only now in 2015 are they 
beginning to do so. The documents provided so far are redacted 
beyond reason.
    In 2014, when the State Department finally sent some emails 
responsive to a 2012 request I'd made, just about everything 
was redacted except the address line.
    It should come as no surprise that the Federal agencies 
often treat Congress with the same disdain and lack of 
transparency. They guard and redact information Congress 
requests as if Congress is a foreign enemy rather than 
representatives of the rightful owners of information. When 
pressed to provide material to Congress, Federal officials 
often exert dictatorial control, creating strict terms and 
rules such as only allowing review of the material during 
certain times in very special rooms all under the watchful eye 
of Federal agency minders. This is not transparency.
    The FOIA process is improperly politicized. Federal agency 
press flaks and politicians intervene to withhold potentially 
embarrassing information. FOIA law does not permit this 
political intervention, but it happens all the time.
    Federal agencies increasingly employ new tactics to 
obfuscate and delay. They say they don't understand a FOIA 
request. They claim it's too broad. They say a search would be 
unreasonable. When they do provide a sensitive document, they 
redact nearly everything, using exemptions such as (b)(5) 
deliberative process, which has become so ridiculously overused 
it has earned the nickname the ``withhold it because you want 
to'' exemption.
    These are some recent documents I received from Department 
of Health and Human Services with some (b)(5) exemptions on 
    Federal agencies claim they lack funding and staff. With 
all due respect, Congressman Cummings, you're probably very 
correct in much of that, but I have also seen that they create 
some of their own backlog by unnecessarily requiring even the 
simplest request to go through the onerous FOIA process when 
it's not necessary.
    And when a court finds a Federal agency violated FOIA law, 
penalties are almost never imposed. And if ordered to repay the 
plaintiff's legal fees, the government does so with your tax 
dollars, meaning there is no deterrent to stop the bad 
behavior. In other words, they are using our money to prevent 
us from seeing our own documents.
    In short, FOIA law was intended to facilitate the timely 
release of public information, but instead Federal officials 
have perverted it and now use it to obfuscate, obstruct, and 
delay. The system is not broken by accident; it's by design. In 
my view, the only thing that can make FOIA work as designed 
would be meaningful criminal penalties for violators.
    Thank you.
    [Prepared statement of Ms. Attkisson follows:]
    Chairman Chaffetz. Thank you.
    Mr. Leopold, you are now recognized.


    Mr. Leopold. Chairman Chaffetz, Ranking Member Cummings, 
and members of the committee, thank you for inviting me to 
testify today about the Freedom of Information Act.
    My name is Jason Leopold, and I'm an investigative reporter 
at VICE News. I aggressively use the Freedom of Information Act 
in order to find out what is taking place behind the scenes 
within the Federal Government. I write long-form investigative 
news reports, many of which showcase the documents I have 
obtained through FOIA. And I also maintain a FOIA blog at VICE 
News called ``Primary Sources.''
    My FOIA work has been cited by the Second Circuit Court of 
Appeals and contributed to the panel's decision last year to 
order the Obama administration's release to The New York Times 
and the ACLU the Justice Department's ``targeted killing'' 
    Documents I have received through FOIA over the past year 
include a Justice Department white paper that explains the 
legal justification granted to the CIA to kill a U.S. citizen 
suspected of being a member of Al Qaeda; an invoice showing 
that Guantanamo officials spent $300,000 on force-feeding 
formula while denying the existence of a mass hunger strike at 
the detention facility; and emails showing the White House's 
interference with the FCC over net neutrality.
    Information obtained through FOIA is critical to our 
democracy because it helps citizens learn what their government 
is up to. Unfortunately, delays in obtaining responsive records 
remain a significant problem for requesters. I have submitted 
thousands of FOIA requests to dozens of different agencies, 
and, in my experience, fewer than 1 percent of my requests have 
been decided within the timeframe required by FOIA. I routinely 
experience delays of several years in response to my FOIA 
requests. For example, the Office of Legal Counsel recently 
informed me that it would likely not complete the processing of 
my FOIA request for emails until December 31, 2016, due in part 
to the agency's backlog.
    FOIA requests are sometimes delayed and politicized at the 
Pentagon because the agency has a policy that calls for certain 
FOIA requests that may generate media attention to first 
undergo an internal review and receive department-level 
clearance before a response is issued and/or records are 
    My FOIA attorney, Ryan James, successfully fought back the 
State Department's attempts to delay the release of Hillary 
Clinton's emails until next year by securing an agreement that 
will see monthly releases of those documents, and that took 
place last week.
    But the delayed responses to FOIA requests are a 
significant problem for investigative journalists. Information 
becomes less newsworthy with the passage of time, and it leads 
to a perception that FOIA is not a useful tool.
    FOIA does provide for expedited processing in certain 
circumstances, but I have found that agencies take a narrow 
view of what circumstances merit expedition. Even when 
expedited processing is granted, the process still moves 
    For example, I submitted a FOIA request to the Department 
of Justice on September 5, 2014, for records relating to the 
Department's investigation of allegations that the CIA had 
accessed Senate Intelligence Committee staffers' computers 
without authorization. When I did not receive a prompt 
response, I immediately filed a lawsuit. Expedited processing 
was eventually granted, but the agency sought and obtained 
approval from the court to delay the release of any records 
until January 29, 2016.
    It is often the case that the filing of a lawsuit against 
an agency catalyzes the release of documents, and I am 
fortunate to have a prominent FOIA attorney, Jeffrey Light, 
representing me and VICE News in more than a dozen lawsuits 
currently against various government agencies. But let me give 
you a specific example of how the FBI maintains a deliberate 
policy of violating FOIA until a lawsuit is filed.
    Under Exemption 7(A), an agency may withhold records or 
information compiled for law enforcement purposes which could 
reasonably be expected to interfere with enforcement 
proceedings. Congress deliberately chose the words ``records or 
information'' when it amended Exemption 7 in 1974. The FBI's 
standard practice, however, is to categorically apply this 
exemption for all investigative files rather than determining 
which records or information would interfere with law 
enforcement proceedings. This is a clear violation of FOIA. 
Doubtlessly aware of this fact, the FBI has never defended its 
position in court. Instead, when a lawsuit is filed, the FBI 
conducts a new review, applying the proper standards.
    A Federal judge recently stated that, ``Because the court 
has doubts about whether the FBI conducted the required review 
at the administrative stage in this case, it will remind the 
Bureau of its obligation to perform such reviews in the 
future.'' Despite this reminder from the court, the FBI has 
continued to deny my requests because the records requested are 
located in an investigative file.
    Congress and the courts could not have been clearer. It is 
a violation of FOIA for the FBI to interpret Exemption 7(A) the 
way it has. Yet the FBI continues to be in routine and flagrant 
violation of the law. I have many more examples to share with 
this committee.
    In sum, FOIA can be a valuable tool for investigative 
journalists but only when it functions effectively.
    Thank you for your time and attention to this important 
matter, and I look forward to answering your questions.
    [Prepared statement of Mr. Leopold follows:]
    Chairman Chaffetz. Thank you.
    Mr. McCraw, you are now recognized for 5 minutes.

                  STATEMENT OF DAVID E. MCCRAW

    Mr. McCraw. Thank you, Mr. Chairman, and thank you, Ranking 
    Chairman Chaffetz. Make sure that microphone is--there you 
    Mr. McCraw. Thank you, Mr. Chairman, and thank you, Ranking 
Member Cummings and members of the committee. I appreciate the 
opportunity to testify about the Freedom of Information Act.
    As an assistant general counsel at The New York Times, I 
provide legal counsel to the newsroom. I'm very familiar with 
the problem that delay presents for our journalists as they 
seek information.
    Last year, I filed eight FOIA lawsuits on behalf of the 
Times. Much of that litigation was driven not by actual 
disagreement about legal issues but in response to unacceptable 
delay by agencies. In other words, we find ourselves compelled 
to litigate simply to prompt agencies to act upon request.
    Let me provide one recent example that shows how wasteful 
and inefficient all of that is and why reform is needed.
    Late last year, the Times made a simple FOIA request to the 
Department of Justice. We wanted to know how much money the DOJ 
had spent paying the legal bills of FOIA requesters in the 
Southern District of New York. FOIA permits the courts to award 
attorneys' fees in FOIA cases where the requester wins. We 
simply wanted to know in a single judicial district how often 
that happened and in what amounts.
    It was a straightforward request about a budgetary matter. 
No FOIA exemption could possibly apply. But weeks passed 
without a response. Over a 4-month period, we repeatedly 
contacted the FOIA officer handling the request. We called that 
office more than 10 times and left messages. Almost all of 
those cases went unreturned. Finally, we filed a lawsuit out of 
    At that point, the U.S. Attorney's Office was required to 
become involved. An assistant U.S. attorney took on the task of 
finding out what was going on in the FOIA office, had our 
request moved quickly along with court deadlines looming, and 
succeeded in getting the documents released to us.
    In short, an assistant U.S. attorney ended up doing what 
the FOIA officer should have done in the first place. Forcing 
requesters to litigate to get a response is a waste of 
government resources. But more than that, a citizen's right to 
get information released in a timely fashion should not turn on 
whether the citizen is fortunate enough to have the resources 
and know-how to sue.
    There is much that needs to be done to fix FOIA, and I urge 
the House to move forward with the reform bill which takes 
important steps towards empowering OGIS, limiting Exemption 5, 
and encouraging the use of technology.
    But I want to focus today on something very basic: What can 
be done to get agencies to respond in the timeframes dictated 
by law?
    Congress, in enacting FOIA, set a response deadline of 20 
business days. While statistics show the response times have 
improved, we know from actual experience that responses from 
many agencies takes months or years. In the documents we 
submitted with my testimony, we include a letter from an agency 
that has sat on a request for nearly 4 years and now wants to 
know whether we're still interested.
    Our written submissions document some specific issues 
relating to today. Let me just briefly highlight three.
    First, much of the delay appears to have little to do with 
the nature and complexity of actual requests but instead 
results from a culture of unresponsiveness. Some agencies are 
consistently good, while others show little sign of improvement 
year after year.
    As requesters, we are not in a position to know what the 
root causes of delay are--whether a lack of resources, poor 
work performance, inadequate training, or something else--but 
we do know two things: First, Congress, after weighing all the 
competing considerations, set specific deadlines in the law; 
second, the leaders of many agencies are permitting those 
deadlines to be ignored by staff.
    In the end, this is a management issue, and those in charge 
of agencies should be held accountable for figuring out what 
the problem is and fixing it.
    Second, delay frequently occurs because agencies decide to 
refer a request to another agency. This happens when the second 
agency is a stakeholder in the information sought. Referral may 
make sense as a policy matter, but few rules govern the 
process. The referring agency lacks authority to demand a 
response from the second agency or set a deadline, and the 
requesters are left on the sidelines. Much clearer rules and 
deadlines are needed.
    Third, FOIA requests often seek information that has been 
submitted by companies to regulatory agencies. Disclosure of 
this information is vital to citizens so they can monitor 
whether regulators are doing their jobs and see whether 
companies are being treated fairly. But in response to such 
FOIA requests, agencies frequently take the position they need 
to consult with the submitters. This process becomes a source 
of endless delay.
    In the documents we provided to the committee, we include 
an agency response letter saying it would take 15 years to 
finish the consultation and respond to our request. Not 
surprisingly, when we sued, a Federal judge found that was 
simply not the case and ordered the release of the information.
    In conclusion, there are a host of reforms we're pursuing 
as we see in the House bill, but taking steps to ensure that 
agencies respond in the time period that Congress saw fit to 
establish should be an essential part of any reform.
    Thank you for inviting me to testify and for taking on this 
important issue.
    [Prepared statement of Mr. McCraw follows:]
    Chairman Chaffetz. Thank you. I appreciate that.
    Ms. Goodman, you are now recognized for 5 minutes.

                   STATEMENT OF LEAH GOODMAN

    Ms. Goodman. I just want to thank you, Chairman, and thank 
Ranking Member Cummings and the rest of the members of the 
    I'm really glad to be here today with so many journalists 
who I very much respect. And the fact that we've come here at 
all represents a stark departure from our usual routine as 
journalists. While we may frequently be found writing about 
hearings such as this, as a rule, we try not to participate in 
    Our mandate to remain objective as journalists demands that 
we stay well above the political fray and cover stories from 
all angles, notwithstanding whatever our privately held 
opinions may be. The urgent problem that we face, though, right 
now is that our role of objectively collecting and reporting 
the facts has been increasingly and aggressively blocked by 
those who would seek to separate the journalists, as well as 
members of the public, from the information that we are 
lawfully entitled to.
    In my job as a senior writer and finance editor at 
Newsweek, I have been surprised by the number of government 
agencies that will stonewall even the most basic requests for 
information that readers and the public have a right to.
    There are no Washington editors here today from any of the 
big newspapers, and the reason why--because I spoke with them--
is that they are concerned about a chilling effect for even 
speaking out on this. They are concerned about the consequences 
of coming here. This, I think, speaks to the seriousness of 
this matter.
    Collectively, the journalists who are here have covered 
major events in this country for decades and have dealt with 
plenty of blow-back, but we have never before seen so many 
agencies that have turned themselves into veritable black boxes 
where information comes in and does not come out. What we're 
now witnessing in terms of obstructionism and obfuscation is 
truly unprecedented in our careers. The issues surrounding the 
Freedom of Information Act, in my opinion, are symptomatic of a 
much wider problem.
    Our job, which is to inform the public about issues crucial 
to our democracy and to the national discourse, relies on our 
ability to gather and check facts in a timely fashion. It 
should be understood that the job of journalists is to have no 
agenda other than to get answers to important questions for our 
readers. And we aren't just answerable to them; we are members 
of the public.
    Last I checked, our government works for the public and is 
paid for by the U.S. taxpayer. You'd think that our public 
service mission as journalists and the government would have 
somewhat symbiotic relationships, but, as we know, we don't. 
The fact we're even here speaking to the Members of the House 
is proof that our widely held notion of a government 
accountable to its people is broken.
    While my colleagues are much more accustomed to problems 
relevant to the Freedom of Information Act than I am, I am here 
to offer broader context about what we face every day as we try 
to do our job.
    To be completely honest, I come from a generation of 
journalists who were told upon entering the newsroom: If you 
want to know what you're going to be writing about in 3 years, 
file a FOIA. So if I want to write about something less than 3 
years, I don't file a FOIA.
    The long waiting games, heavy redactions and lack of 
accountability, and the culture of concealment that seems to 
pervade the FOIA process also carries over into all aspects of 
what we do, especially when we're dealing with government 
    Once upon a time, you could call a government agency and 
talk to someone with a real first and last name. You could get 
their contact information without fighting through people for 
it. You could tell them what you were writing about and set up 
an interview with someone knowledgeable at the agency who could 
talk to you. Sometimes they would have no comment, which is 
fair enough, but everyone knew who they were dealing with and 
the process was as honest as one could expect it to be. In 
other words, there was a modicum of responsiveness and 
    These days, when I call a Federal agency, what I'm dealing 
with can only be compared with an offshore call center with a 
constantly rotating cast of characters answering the phones, 
who are trained to not give their names, who can tell you 
nothing about who is knowledgeable on the topic about which 
you're writing, and who urge you to email a generic 
``[email protected]'' sort of address, which has no name on 
it and, as all journalists know, is the kiss of death.
    I don't think this is the fault of the staffers. In my 
opinion, most of the staff at these agencies are not being 
empowered by their superiors to have even rudimentary exchanges 
with journalists.
    The next time you read a news article that involves a 
government agency, count how many times an actual person with a 
name has an actual quote from that agency that does not come 
from an already published comment or congressional testimony or 
a press release or a press conference. You'll see that quotes 
from these sources with full names from agencies are rarer than 
hen's teeth.
    This is because, the environment we're operating in, 
journalists will not be able to talk to anyone unless we agree 
to not name them or they will ask to remain anonymous while 
contributing to our stories. In these cases, the agency or 
staff member will comment only on condition that they are not 
identified, effectively attempting to make it impossible for 
readers to know who's feeding them this information. And we, 
the journalists, are expected to be enablers and stewards of 
this cowardly process I find to be the opposite of what 
journalism is for.
    One example: While investigating high-frequency trading 
last year and whether it was disrupting our markets, as finance 
editor for Newsweek, the U.S. Securities and Exchange 
Commission repeatedly told me that I could not quote its market 
experts, even after arranging interviews with them and 
conducting extensive conversations with them and agreeing to 
allow them to check their own quotes.
    This government agency is tasked with overseeing the 
Nation's stock markets, and yet it also informed me that, while 
I could use the information it gave me, I could not say where I 
had gotten it in my story. In other words, I was to hide the 
fact that I had gotten this information from the SEC and 
expected to present it to the public as incontrovertible fact.
    Ethically, journalists can't agree to such terms unless 
under rare circumstances, usually ones entailing security or 
protection of an individual, not large government agencies. But 
these agencies want this kind of special treatment every day, 
and that is as a starting negotiation condition.
    In the case of the SEC story, I didn't agree to the terms, 
and, as a result, an SEC staffer asked to speak with my editor 
immediately. The message was clear that if I did not do as I 
was told the situation would be escalated in a way that might 
be problematic for me. My editor was not amused, and, days 
after we went to print with this story, the SEC announced an 
investigation into high-frequency trading disrupting U.S. 
    In the past year alone, I've worked with around two dozen 
government agencies that have wanted to dictate to me how to 
write my stories, what I can say and cannot say. And they seem 
to think this is entirely reasonable when, in fact, it is quite 
extraordinary. If I don't agree to the terms, the result will 
be waiting days, weeks, or getting no answers at all to 
    While one might chalk this up to a basic lack of media 
training among these agencies, it is curiously lacking in 
exactly the same way, with the same tendency towards zero-
accountability anonymousness. And it's getting worse.
    These issues are not just ones of gamesmanship in the form 
of delays and denials of critical information but a desire on 
the part of our agencies to remain in the shadows while 
anonymously influencing the news received by the voting public. 
It is my hope that by appearing today the House might consider 
taking steps to place such standards that would restore 
    To directly address what can be done requiring--regarding 
FOIA and the broader problems that I speak of, Congress should 
consider legislating an enforceable set of core standards by 
which Americas can seek and receive information in a timely 
fashion from identifiable sources within the government in 
response to their questions rather than the cloak-and-dagger 
games that we now see. Until such standards are imposed and 
enforced with real consequences, I think these games will 
    And, lastly, if you're wondering if I expect there to be 
consequences for my being here and saying this today, yes, I 
do. But I believe if we don't stand up and speak in one voice 
as journalists that our jobs will only get harder.
    Thank you for your time, and, again, thank you for having 
me here.
    [prepared statement of Ms. Goodman follows:]
    Chairman Chaffetz. Thank you, Ms. Goodman.
    Mr. Anderson, you are now recognized for 5 minutes.


    Mr. Anderson. Thank you, Mr. Chairman and members of the 
committee, for allowing me to come and speak here today.
    I agree with the chairman and with my colleagues that 
government transparency and its obverse, government secrecy, 
are among the most important problems that we face today, both 
this body and our country.
    The guarantee of freedom of speech and of the press and all 
the other freedoms that we have enjoyed for 240 years means 
little without freedom of information. If we do not know what 
our leaders are doing in our name, how are we going to hold 
them responsible, accountable? How can we know which leaders to 
choose? How can we claim to have a government of the people, by 
the people, and for the people?
    Yes, there are certain things we should not know too much 
about--the movements and strategy of our Armed Forces in 
wartime, for instance--but such cases arise seldom. So why is 
our government and its agencies currently protecting millions 
of individual documents, hundreds of thousands of actions and 
decisions made by our elected and appointed officers, at the 
cost of somewhere upwards of $11 billion a year and increasing 
    Yes, I know the world is a dangerous place. I know that 
2,700 people were murdered at the World Trade Center on 
September 11, 2001, and hundreds more in attacks on embassies 
and individual Americans around the world since. But I also 
know through experience and through research that the vast 
majority of those millions of secrets have nothing to do with 
terrorism or our national security. Instead, they often involve 
automatic decisions by the horde of bureaucrats who have the 
authority to stamp ``Top Secret'' on the flow of papers that 
cross their desk or, just as often, some minor functionary 
trying to protect himself or herself from political or personal 
    How do I know this? Well, when I came home from Lebanon, I 
was given a generous fellowship at Columbia University by the 
Freedom Forum so my wife and I could write a book about our 
experience. We decided to ask under the Freedom of Information 
Act for any information on my kidnappers that might be held by 
the various intelligence agencies--the CIA, the FBI, the NSA. 
In all, we requested responses from 13 government agencies.
    As you know, FOIA sets time limits and parameters for 
official responses to that kind of request as well as 
procedures for appeal, ultimately to a court of law. After 2-1/
2 years of messing about with denials and denials of appeals 
and outright failures to respond, I finally took advantage of 
that last provision and filed suit in U.S. District Court in 
    Included in the legal submission was the initial response 
from the DEA, which was made long after its FOIA deadline had 
expired but informed me that they could not furnish the 
information I requested because it would violate the privacy 
rights of the individuals concerned; however, if I was able to 
get a signed, notarized release from my former host, they would 
be happy to cooperate. I was not greatly interested at the time 
in finding my kidnappers again and asking them for permission 
to peruse their files.
    Eventually, I began getting actual documents. Most were 
heavily redacted, including one that had only the title left, 
with about a dozen pages following it completely blacked out. 
And so we fought on for 4 years, at the end of which, in 
accordance with repeated judicial orders, I had dozens of boxes 
of files to look through to try to understand the events that 
had engulfed me and my family.
    I read them all carefully. They included copies of my own 
stories for the AP, which had already of course appeared in 
thousands of newspapers, copies of publicly available reports 
stamped ``Confidential,'' and masses of irrelevant paper or 
discussions of diplomatic faux pas or less than diplomatic 
comments someone had made about foreign leaders, and so on.
    So the government spent millions of dollars and 4 years of 
effort trying to protect secrets, not one of which concerned 
actual security interests of the United States.
    During this period, the late Senator Daniel Moynihan 
conducted, at the President's request, a 2-year study of 
government secrecy. You may remember it. He concluded in his 
1995 report that the U.S. had fallen into a culture of secrecy 
which had become dangerous to our democracy.
    Senator Moynihan, a great statesman, a brilliant mind, and 
a personal friend, said this: ``Excessive secrecy has 
significant consequences for the national interest when, as a 
result, policymakers are not fully informed, government is not 
held accountable for its actions, and the public cannot engage 
in informed debate. ``Secrecy is a form of regulation,'' the 
Senator said, ``and while we're all familiar with government 
overregulation, the public cannot know of overregulation when 
the regulation is kept secret from them.''
    Senator Moynihan also noted that while the then-controlling 
Presidential finding authorized 20 officials to use the Top 
Secret classification, meaning concerning information the 
disclosure of which could be expected to cause grave harm to 
our national security, some 2 million officials and a million 
private contractors have been given derivative authority to use 
that officially highest classification--3 million people 
stamping ``Top Secret'' on the flood of paper crossing their 
    The Moynihan commission recommended some changes in the 
law, including an office of declassification. Nothing was acted 
upon. In fact, when President Clinton ordered a mass 
declassification of documents from World War II and before, he 
was largely ignored by the bureaucrats who run the system.
    By the way, the oldest known classified document in the 
system at that time was a report on troop movements in World 
War I. As far as I know, it's still classified.
    In 2006, the CIA and other agencies, in an operation that 
was itself classified, pulled 55,000 documents out of the 
public domain at the National Archives and reclassified them. 
I'm going to presume they're still doing that.
    And so we come to the opening of the Obama administration. 
On inauguration day, the new President announced his commitment 
to a new era of openness and transparency. ``My administration 
is committed to creating an unprecedented level of openness in 
government,'' he said in a message to all government agencies.
    Today, reporters describe this administration as ``control 
freaks'' and the most closed they've ever covered. The Obama 
administration has prosecuted more whistleblowers than any 
other and used the Espionage Act more often than any other 
administration to prosecute reporters' sources. It has also 
spied on reporters and even their parents.
    The result of all this is inevitable, I believe. We now 
have a society in which large areas of government decision and 
action are routinely kept from the public. Think of Abu Ghraib 
and the torture of prisoners, official and unofficial. Think of 
massive spying on American citizens, whose phones, computers, 
vehicle movements, even bank accounts can be monitored without 
their knowledge. And if they have the ability, what makes you 
think they won't use it? Oh, and, by the way, I'm sure the 
members of the committee realize this includes you. When you 
call the head of the NSA in here and ask him and he says, ``No, 
we don't spy on Members of Congress,'' are you going to believe 
him this time?
    Our fear, heightened by the war on terrorism, is 
overwhelming the system of government that has served us for 
240 years. Half of the Bill of Rights is now regularly ignored. 
Officials of our own government agencies seem to violate the 
Constitution at will and with impunity. Our senior intelligence 
officials blithely lie to you and to the American people in the 
name of security. And we can do little because we know little.
    I believe that young Mr. Snowden should not be hiding in 
Moscow and poor Private Chelsea Manning should not be serving a 
long prison sentence. Yes, they broke the law, but they did so 
in accordance with their conscience, which told them that what 
they were seeing was wrong. They should be here in Washington 
wearing black ties and receiving awards. Because of them, we 
are now having a public debate over serious issues we would not 
even know about.
    We need this debate. And, more than that, we need some 
action that will return us to the principles we have held to 
since the founding of the United States. We need to control our 
fear and control our government.
    Thank you.
    [Prepared statement of Mr. Anderson follows:]
    Chairman Chaffetz. Thank you.
    I thank you all for your testimony.
    We will now recognize the gentleman from South Carolina, 
Mr. Gowdy, for 5 minutes.
    Mr. Gowdy. Thank you, Mr. Chairman. And I want to thank you 
for your longstanding interest and commitment in this area.
    And our friend from Maryland put a slide up that dealt with 
budget constraints, and that just got me wondering--and I do 
want to welcome all of our panelists--could there possibly be 
any other explanation for the failure to fully comply with FOIA 
law other than budget constraints?
    Ms. Attkisson, can you think of any other possible 
explanation for either slowly complying or not complying at all 
with FOIA complaints other than budget constraints?
    Ms. Attkisson. Well, as I said, I think--yes. I think 
they're creating their own backlog and creating their own 
expense by requiring us to go through a process, when it used 
to be if you asked a government official for a quickly 
available public document, something that's easily accessible 
on their desk, they would give it to you. They now use FOIA to 
require you to go to the end of a long queue, where it will 
never be answered, thus creating this backlog themselves, I 
think intentionally.
    I got a couple of phone calls on the eve of the hearing, or 
mail contacts from outstanding FOIA requests, Federal agencies. 
I'm sure it's just a coincidence. They just want to let me know 
that my request is still going, if I'm still interested, even 
though years have passed.
    And one of the officers--I don't want to name names because 
this is someone who talks to me--said, ``I don't know what's 
taking so long. This is ridiculous. We have all the papers that 
we're supposed to be giving you,and there's nothing in it 
except press clippings of your own work anyway, so I don't know 
why the Department of Justice is holding it up.'' And this is a 
request that's been outstanding since at least 2013.
    So they're doing this intentionally; I don't think there's 
any doubt about that. And then I think that creates their own 
expense. They could use the money they use fighting lawsuits 
and other things they don't need to do to hire that staff they 
need to process the FOIA requests. And they can avoid a lot of 
FOIA requests by simply making obviously public information 
public without requiring the FOIA process.
    Mr. Gowdy. We will circle back to that judicial remedy 
before we're through.
    Mr. Leopold, are there any exemptions that just cry out to 
you as being overused?
    Mr. Leopold. Certainly Exemption 5, the ``withhold it 
because you can'' exemption. I've had----
    Mr. Gowdy. It's probably not worded precisely that way, is 
it? What's the legal----
    Mr. Leopold. I don't know. It's redacted. So perhaps it's 
underneath a redaction.
    Mr. Gowdy. What's the legal jargon by which--what does 
(b)(5) say?
    Mr. Leopold. (b)(5) is the deliberative process. 
Interagency communications----
    Mr. Gowdy. So it doesn't have to be a legally recognized 
privilege. It can just be because we felt like it.
    Mr. Leopold. Correct.
    And that's--the use of that exemption has increased 
astronomically. I've received--or, excuse me, the FCC had 
processed thousands and thousands of pages related to net 
neutrality that I requested a year ago, and they withheld 
thousands and thousands of pages under the (b)(5) exemption.
    I believe this committee has some of those unredacted 
emails that I sought, so perhaps you can tell me what is--
what's contained in those communications, because the FCC is 
saying that it's--you know, it's part of the deliberative 
    Mr. Gowdy. Mr. McCraw, it appears as if Members in my line 
of work are aligned, to a certain extent, with folks in your 
profession, which could be a sign of the apocalypse, or it 
could be that we are right.
    Judges seem to have no trouble getting compliance. So, shy 
of going to court, what should Congress investigate so we can 
at least get as good a result as an unelected person who 
happens to wear a robe for the remainder of his or her life?
    Mr. McCraw. I'm going to go with the theory we're right 
rather than the end of days.
    I think that--and I mentioned this--that there needs to be 
a change in the culture. And that is hard to define how you get 
    I think it's easy to think about--and you've heard it 
here--what it would look like. And that is, just as they have 
customer service as a business, there should be citizen 
service. When you call that agency, somebody with a name, 
somebody with an email address, somebody with a phone number 
should be talking to you, and that you should be able to find 
out online whether your request is moving up, moving down, 
moving sideways, wherever it is. There should be reach-out to 
the requester community by the public liaison officer, by the 
chief FOIA officer to go over what we can do better.
    And this goes back to the question that you posed to Mr. 
Leopold, is that it seems to me that key here is the 
presumption of access, which is in the reform bill. Because I 
think the presumption now is fear, and the agency FOIA officers 
don't want to get in trouble. They take the most conservative 
approach they can, knowing that that's the way to avoid 
trouble. Presumption of openness, where it is reversed and you 
get in trouble for hiding things--very important move.
    Mr. Gowdy. Thank you.
    And thank all of our panelists.
    And I would yield back the time that I no longer have.
    Chairman Chaffetz. I thank the gentleman.
    Recognize the ranking member, Mr. Cummings from Maryland, 
for 5 minutes.
    Mr. Cummings. Mr. McCraw, how long have you been doing your 
work in this capacity that you're here today?
    Mr. McCraw. Between the New York Times and the Daily News, 
I've been doing it on a daily basis for 15 years. I did some 
before that as well.
    Mr. Cummings. So you've seen a lot.
    Mr. McCraw. I have.
    Mr. Cummings. Over the years has the problem gotten worse 
do you think?
    Mr. McCraw. I'm sorry?
    Mr. Cummings. Has it gotten worse, I mean, over the years?
    Mr. McCraw. I get asked that question a lot. I think it has 
gotten a little better in terms of knowing what is going on. I 
think some of the things that Congress did in 2007 have 
actually worked, so we understand more about the process, 
statistics and so forth. That's important. In terms of 
requests, I haven't really seen a great deal of change in terms 
of timeliness.
    Mr. Cummings. Clearly there is a problem, and, you know, 
the people in the media and others requesting may have one 
opinion and then those who are in government have another 
opinion. And I think that you're probably right when you talk 
about a culture of fear. And some kind of way we need to get to 
the bottom of that so that we don't waste so much time, waste 
so much energy, waste so much money, and so that we can get to 
the basis of FOIA. I mean, why do we even have it? Sometimes I 
think that we think we are going to be on this earth forever, 
and life is short.
    And I was thinking about something that Ms. Attkisson said, 
talking about your daughter, started off in what grade? What 
grade did she start off in?
    Ms. Attkisson. Well, when I requested at the one point she 
was 8 years old, and then she was going off to college 10 years 
later when I got a response.
    Mr. Cummings. We're better than that. We have got to do 
    Mr. McCraw, earlier this year Representative Issa and I 
introduced H.R. 653, the FOIA Oversight and Implementation Act. 
The bill codifies in law a presumption of openness. You talked 
about that just a moment ago. The bill does this by creating a 
legal presumption in favor of disclosure in response to FOIA 
requests. When President Obama took office, he issued the memo 
that directed agencies to administer FOIA with, ``clear 
presumption. In the face of doubt, openness prevails,'' end of 
quote. You're familiar with that, right?
    Mr. McCraw. I am.
    Mr. Cummings. So the bills requires that records be 
disclosed under FOIA unless agencies can demonstrate, ``a 
specific identifiable harm.'' Now, in 2009 Attorney General 
Holder issued a memo instructing agencies that the Department 
of Justice will defend FOIA denials only if an agency 
reasonably foresees that disclosure would harm an interest 
protected by one of the statutory exemptions or disclosure is 
prohibited by law.
    Do you think that incorporating this standard into the FOIA 
statue makes sense, and do you think that would be helpful?
    Mr. McCraw. I do, Mr. Cummings, and it assures that that 
presumption doesn't get changed as administration changes. I 
also think that when Congress says it there's a chance the memo 
gets to the FOIA officers in a way that when the agency does.
    Mr. Cummings. Let's put a pin right there.
    Mr. McCraw. Yeah.
    Mr. Cummings. Because I want to go back. Because I'm trying 
to get to the bottom of this. So what you're saying is the rule 
can--or the President can say one thing, but because of then 
going back to something else you said, because of a culture, 
then a lot of times that's not carried out. Is that----
    Mr. McCraw. I think that's right. Many of the civil 
servants will outlast any given administration. The other thing 
that makes it important for Congress to say it is when I go to 
court, the standing of that as a law, as part of FOIA, is going 
to be different than it is as a regulation.
    Mr. Cummings. So in your testimony you talk about this 
culture of unresponsiveness. Do you think incorporating the 
presumption of openness into the FOIA would send the right 
message to agencies that they should err on the side of 
disclosure as long as it's----
    Mr. McCraw. Yes.
    Mr. Cummings. Go ahead.
    Mr. McCraw. Yes, I do, Mr. Cummings.
    Mr. Cummings. So you're familiar with 653. Is there 
anything that you would add to it? You know, cultures are 
tough. We're seeing this, the chairman and I, dealing with 
quite a few agencies, this committee. And the culture is hard 
to break sometimes. I mean, other than what we have, what do 
you suggest that we do?
    Mr. McCraw. I think there are some things that would help. 
One is in the past FOIA used to have preferential treatment 
when you filed a court case. I would like to see that come 
back. I would like to see better accounting of how fast they're 
moving. The statistics tend to be at a level that don't really 
help us understand the nitty-gritty of how they're moving.
    I think that in the 2007 Act, there was the creation of the 
public liaison. I think the public liaison should be required 
to make requests that account for how he or she in each agency 
is doing his job, what's happened over the course of the year. 
Those things would help.
    The most important thing, though, which would require some 
homework and some deeper dive, is that the exemptions have been 
given much, much too broad of a reading not only by the 
agencies, by the courts. Congress has the power to cut those 
back. That's the single most important thing that would help.
    Mr. Cummings. Thank you very much, Mr. Chairman. I yield 
    Chairman Chaffetz. I thank the gentleman.
    I now recognize the gentleman from North Carolina, Mr. 
Meadows, for 5 minutes.
    Mr. Meadows. Thank you, Mr. Chairman.
    Mr. McCraw, I want to pick up right where you left off, the 
exemptions, because we have gotten a number of redacted pieces 
of correspondence that have not only E5, but it's got all kinds 
of others. And so what you're saying is if we were to clarify 
what can be redacted or what the exemptions are, it would help 
your process. Is that correct?
    Mr. McCraw. That is correct.
    Mr. Meadows. So in doing that, can you help this committee 
identify some of those areas? And I would say to all of you, 
can you help us identify those areas? I know we have got a 
second panel, and they have weighed in on this particular issue 
before. But what I'm finding is that that there's a few 
    And yet here's the interesting thing, and I think it was 
you that was talking about a culture of fear. I'm aware of no 
one, not one single person in all of the Federal agencies that 
ever got fired for giving out FOIA information inappropriately. 
Are you all aware of any?
    Mr. McCraw. I'm not aware of any.
    Ms. Attkisson. I don't think they're in fear of being 
fired. They've been directed by their superiors and by the 
political or the bureaucrats that persist from administration 
to administration how to handle these requests, and if they 
don't do so, it doesn't necessarily mean they'll lose their 
jobs, they just won't advance or something bad will happen to 
their career.
    Mr. Meadows. All right. So, Ms. Attkisson, you're 
suggesting then that this is more of a directive than it is a 
lack of resources. It's basically a directive that says we need 
to be as confidential and keep it as close to the vest, versus 
we just don't have the time to respond. Is that correct?
    Ms. Attkisson. I believe it is. And I've spoken to FOIA 
officers who described that process, that they are required to 
submit documents--and this started many years ago, not just 
recently--to submit documents for political clearance, which as 
I said in my opening statement isn't codified in FOIA law and 
yet is done all the time. And FOIA officers don't agree with 
that, most of them, I think, the ones that I deal with.
    Mr. Meadows. So as an award-winning journalist, would you 
describe the closer you get to the heart of the matter, the 
more delayed those requests perhaps get, or is there no 
    Ms. Attkisson. For me, I mean, everybody has a different 
experience, but in general I just get pretty much nothing 
quickly ever. One exception is I deal with one agency called 
HERSA that maintains vaccine injury information, and I have to 
say that when I ask them for something, they provide it on a 
timely basis without requiring a FOIA, and that's the only 
agency I can think of that's done that for me in any 
significant way in years.
    Mr. Meadows. Well, I can speak for myself, and I'm sure a 
number of my other colleagues would like to reach out to them 
and thank them and recognize them for the good job. Sometimes 
we don't pat enough people on the back.
    Ms. Goodman, let me come to you.
    Ms. Attkisson. I'm afraid they'll get in trouble because I 
mentioned their name.
    Mr. Meadows. Okay. Well, we'll just unofficially just say 
thank you today if they happen to be watching.
    Ms. Goodman, let me come to you, because one of the things 
that you shared concerned me greatly. You're saying that the 
chilling effect of potentially reporters and editors that are 
not here today testifying is because they are afraid that they 
may get some kind of reprisal from Federal agencies in terms of 
access if they are known to be complaining. Is that correct? 
Was that your testimony?
    Ms. Goodman. Yes. My testimony, which I didn't read all of, 
also includes issues with the DOJ and IRS that I've had, and I 
fully expect that if those offices know that I've made that 
testimony today, then I will have more difficulty getting 
information the next time I call them, and that is the 
assumption of most journalists in Washington.
    Mr. Meadows. Well, we are asking, this committee is asking 
you officially then today that if you see any abnormal response 
times as it relates to future requests that may be indicative 
of your testimony here today, if you would please let this 
committee know, especially if it relates to IRS and the 
Department of Treasury. That comes under our subcommittee, so 
we would ask that.
    I want to finish with one final ask, Ms. Attkisson. As you 
look at the number of requests that have been made, many times 
the American people count on reporters to truly get the truth 
out there. Does it give the impression that not only just this 
administration, but government agencies across the board are 
less than transparent when they do not allow you to have that 
    Ms. Attkisson. I think that's true. And as someone else 
brought up, there are bureaucrats who persist from 
administration to administration and are just waiting for the 
current one to go out if they can just mark time long enough. 
I've dealt with the same bureaucrats in some cases from 
Clinton, Bush, and now Obama, some of the same people 
obstructing the same information. And maybe they move around a 
little bit, but they're still there.
    Mr. Meadows. Thank you, Mr. Chairman.
    Chairman Chaffetz. I thank the gentleman.
    I now recognize the gentlewoman from the District of 
Columbia, Ms. Norton, for 5 minutes.
    Ms. Norton. Thank you very much, Mr. Chairman. It's very 
interesting testimony. You would think that the free press and 
the public had a lot in common. I always thought that I was a 
First Amendment lawyer in a prior life and that the press 
should not be seen as the enemy.
    I will tell you that this committee will not see the press 
as the enemy until you get to investigate somebody up here. So 
it is in the nature of government that it will regard you as 
the enemy the more you want to know, and I'm not sure you'll 
ever see much difference in administrations.
    And I'm interested in exemptions, whether or not there's 
anything that the committee could say in terms of clarifying 
language that would do any good. The chairman may remember that 
we have done clarifying language on whistleblowers, and I'm not 
sure even that always matters since we would like them to come 
out and below the whistle without feeling reprisal, and there 
the notion of reprisal is not guesstimate.
    I continue, by the way, to be amazed with how much of your 
work you do for us. That is to say, people call the newspapers, 
and then they have a hearing because they read it in the 
newspapers, or they get a question that they wouldn't have 
    So I'm interested in these kind of natural secretive 
agencies like DOD, you know, people like that. And I'm 
particularly interested that there has been what one would have 
thought would have been a clarifying Supreme Court decision, 
Milner v. Department of Navy, that said that the statute means 
what it says, that you're supposed to give all records unless 
they're related to personnel rules and practices of the agency. 
That's pretty narrow. That's a pretty narrow hole if you're 
going to crawl through that.
    The problem I have here is it does not seem to have 
thwarted an agency like the DOD. The Court has held that 
exemption called exemption--this is exemption No. 2, the one 
says personnel stuff yeah, but over the other stuff, no. So DOD 
is proposing an expansion even of that, and even after the 
Supreme Court decision.
    And this is what it would say, and I'd like your view on 
this: Predominantly internal, you can withhold records that are 
predominantly internal to the agency but only to the extent 
that disclosure could reasonably be expected to risk impairment 
of the effective operation of an agency or circumvention of 
statute or regulation.
    What's your view of that proposal from the DOD? What are 
they trying to do? What are they trying to do that exemption 2 
doesn't do?
    Mr. Leopold.
    Mr. Leopold. I think, simply put, they're trying to 
withhold more records and creating language that would thwart 
requesters' ability to obtain certain records. The fact that 
this new language was, I believe it was buried in the NDAA, if 
I'm not mistaken----
    Ms. Norton. Yeah, that's right.
    Mr. Leopold. --I have not pored over it, but I see it as 
just another hurdle that requesters have to jump over.
    Ms. Norton. And I'm interested in this because what the 
Court said is you can't use broad language. So the implication 
is there's narrow language you all can get to and maybe you 
will get over. So they're trying, they're trying, and here 
Congress has to respond by either putting it in--and you can 
scare Congress too in the age of ISIL. So this notion about no 
broad interpretation gets seen as, okay, make it as narrow as 
you can but broader than the one that says you can't withhold 
information unless it's personnel matters.
    Here's another one, exemption 3: Add a statutory exemption 
that it could keep secret, ``information on military tactics, 
techniques, or procedures.'' Now, is that necessary? I mean, is 
that something we need to clarify, would you say? Is that in 
danger of being disclosed by any agency, Mr. Leopold?
    Mr. Leopold. I have never received records, and I have 
asked for them. I've pretty much asked for everything from 
every agency, I think, that exists within the Federal 
Government. And by the way, let me just say that should 
Congress want to make itself subject to FOIA, I fully support 
    But to answer your question, I've never received any 
records from any government agency that would reveal military 
movements, troop movements.
    Ms. Norton. Have you asked for such information? I mean, 
are they concerned that you all might ask for something about 
where we are in Syria and what ISIL is doing? Is there 
something they have to protect themselves against? They keep 
coming back to the Congress whenever the Defense Authorization 
Act is up.
    Mr. Anderson, did you have something on this?
    Mr. Anderson. Ma'am, it seems to me the language you 
recited would allow them to withhold training manuals and 
things like that that I know that the military fears the 
terrorists will get a hold of and somehow learn to be better at 
    Ms. Norton. And you don't think they could already withhold 
    Mr. Anderson. No, most of them are not classified in any 
    Ms. Norton. And there's the rub, Mr. Chairman, because 
these are not classified materials, and so if they're 
unclassified and the press wants to know why they can't have 
access to them. Thank you very much, Mr. Chairman.
    Chairman Chaffetz. Thank you.
    I'll now recognize myself for 5 minutes. I'd like to enter 
two records and ask unanimous consent. One is a memorandum of 
January 21, 2009, Freedom of Information Act from the President 
of the United States. Without objection, so ordered.
    Chairman Chaffetz. I would also like to introduce into the 
record, a couple months later, April 15, 2009, a directive from 
the White House, memorandum for all executive departments and 
agency general counsels from Gregory Craig, counselor to the 
President, reminder regarding document requests. Without 
objection, so ordered.
    Chairman Chaffetz. Here's the concern. The President put 
forth a very laudable directive. He says: ``The presumption of 
disclosure also means that agencies should take affirmative 
steps to make information public.'' He says all agencies should 
adopt the presumption in favor of disclosure. And he goes on, 
and I think most people would applaud this type of thing. 
Certainly in one of his first days in office to do that is 
significant. It's part of the reason we're here.
    But I want to read to my colleagues a portion of this 
chilling effect that I think went out from the White House that 
changed that discussion quite dramatically. This is, again, to 
all executive department and agency general counsels: ``This is 
a reminder that executive agencies should consult with the 
White House Counsel's Office on all document requests that may 
have involved documents with White House equities.''
    Now, I'm not sure what the definition of White House 
equities exactly is. But he says in the second paragraph: ``The 
need to consult with the White House arises with respect to all 
types of document requests, including congressional committee 
requests, GAO requests, judicial subpoenas, and FOIA 
    Now, we can talk about the backlog. We can talk about the 
thousands of people that have been employed. We can talk about 
the millions of dollars that are allocated. But if you've got 
the yahoos at the White House having to review each and every 
document that falls under FOIA, judicial subpoenas, GAO 
requests, congressional committee requests, this is the heart 
of the backlog. The heart of the backlog lies in this memo, 
that we have to clarify, the President of the United States 
less than 4 months after he's been in office, to say: No, no, 
no, no, no, no, no, don't fulfill the FOIA request. Send it 
here to the White House. We have equities, the White House 
    You want to see the bottleneck, look at the White House. 
And if there's further clarification, let's see it. But right 
now it's a three-paragraph memo, and it's crystal clear: Folks, 
don't you dare fulfill that FOIA request.
    This doesn't say comply with the law. Does anywhere in 
FOIA, does it say that the White House General Counsel's Office 
should review a FOIA request before it's given to the public or 
the media? No. But it does say: ``The need to consult with the 
White House arises with respect to all types of document 
requests,'' and included in there is FOIA. And, it goes on, and 
it ``applies to all documents and records, whether in oral, 
paper, or electronic form, that relate to communications to and 
from the White House, including preparations for such 
    Mr. Connolly. Would the chairman yield?
    Chairman Chaffetz. Sure.
    Mr. Connolly. I thank the chairman. Chairman, I'd ask 
unanimous consent to enter into the record a memo from the 
George H.W. Bush White House Assistant Attorney General on this 
issue dated September 1, 1988, which is identical to the policy 
the chairman is decrying requiring that FOIA requests go 
through the White House.
    Chairman Chaffetz. Without objection, so ordered.
    Mr. Connolly. I thank the chairman.
    Chairman Chaffetz. And what I would argue is, if it wasn't 
right in the Bush administration, it's not right in the Obama 
administration. I don't care who's in the White House, it's 
wrong, it's wrong, it's wrong. It has a chilling effect. It 
slows people down. It sends a signal to those men and women who 
are on the front lines who are trying to do their jobs and have 
been hired to do it, don't you dare send that to Mr. Leopold, 
don't you dare give that to the New York Times, how dare you 
talk to CBS News, don't you dare talk to Newsweek. And heaven 
forbid you should give Mr. Anderson the records about his 
captors because we wouldn't want to offend the people that 
kidnapped Mr. Anderson for 7 years.
    That's the problem. That's the problem. The message from 
the President, the message from the White House should be open 
it up. What are we afraid of? It was the Bush administration 
that did all that. Why couldn't we have done what the President 
asked for on day one of his administration, the first day he 
put it out there?
    My guess is if we--this is a guess, total guess--if we had 
the President of the United States right here, his heart was in 
the right place, he wanted to do the right thing, he wanted to 
score points with the media, he wanted to score points with the 
public, he'd score points with me, the problem is 4 months 
later he made the same mistake evidently that the Bush 
administration made. In fact, it's worse. The backlog is double 
what it was.
    And that's the problem. That's why we're here today. We're 
going to try to legislate. We're going to try to clarify 
further. But when you send out this email, you scare everybody 
and saying you better not send it out unless you get it to the 
White House.
    Now, do any of you have a comment or question or want to 
respond to what I just said? Mr. McCraw, do you have any 
thought about this email and what it would do?
    Mr. McCraw. I'm going to come back to a very simple thing, 
20 days. Whatever the process is inside, follow the law and get 
the documents out to us in 20 days. That's what should happen.
    We saw something similar in New York City when the Giuliani 
administration left, which had been very centralized, and the 
Bloomberg administration stepped in, and the mayor's office 
essentially empowered the agencies without getting permission 
from the mayor's office to release stuff. It was a good day. 
And some of the agencies couldn't believe it. Took them a while 
to get used to the freedom. But, yes, the law should be abided 
by, and 20 days should mean 20 days.
    Chairman Chaffetz. Thank you, sir.
    On my list, based on attendance here, Mr. Lieu is up next, 
and we'll now recognize him for 5 minutes.
    Mr. Lieu. Thank you, Mr. Chairman.
    Let me first thank the panel for what you do. I believe the 
best protection for America and our way of life is not the NSA 
or the FBI, it's a free press that points out Federal 
governmental overreach, as well as overreach in the private 
    I had a question for Ms. Attkisson. In your testimony you 
mentioned you had filed a FOIA request to the Centers for 
Disease Control about 8 months ago on the Enterovirus. Have you 
gotten a response yet or you still have not?
    Ms. Attkisson. No, sir, I haven't received any documents. 
Just when I ask, they tell me they're working as fast as they 
    Mr. Lieu. Thank you.
    And then to Ms. Goodman, I was floored when you said that 
you and other journalists may believe that you would face 
reprisal from agencies if you sort of spoke up and so on. So I 
have a question for you. Do you believe you have no recourse? 
Could you go to the IG or to another place to try to get 
protection? Or do you believe that, for instance, being here 
today, you're going to face a much harder time getting some 
information in the future?
    Ms. Goodman. Let's see. How do I answer that? It's not just 
no recourse. It's literally, I mean, even not agreeing to their 
terms will cause huge consternation in that agency.
    So, for example, when the SEC proposed to me that we'll 
give you information and just put it in the story, and I said, 
all right, I'm going to attribute it to the SEC, according to 
the SEC, whatever, they said: No, no, no, you can't do that, 
you can't say it came from us. That means when I write it, it 
looks like I think that what they said is true as opposed to 
I'm saying they said something is true. It's misleading, 
patently misleading to the reader.
    And if you say, no, I will not do that, it's not just that 
there's no recourse, it's that now you're a sworn enemy of 
their office and as soon as they hear your name they will not 
answer your calls for sometimes days and you're on a deadline.
    So, no, it definitely can be very hostile, and it's with 
the presumption on their part that they're entitled to do this 
to you, that they set the rules and you have to follow them, 
and if you don't, you're difficult.
    Mr. Lieu. Thank you. That's just very troubling. I think 
that's not the America that most of the public would want to 
live in.
    I'm going to reserve the balance of my time to make a 
statement. I believe the problems that the press is 
encountering with FOIA to me is the latest indication of the 
brazenness with which some of our Federal agencies violate 
congressional law and the Constitution. You see this with the 
NSA when they completely violated the PATRIOT Act by conducting 
mass surveillance on Americans' phone records without any 
authorization from Congress. That's what the Second Circuit 
Court of Appeals said. You see that when the Director of 
National Intelligence comes to Congress, takes an oath, and 
lies to Congress. You see that when the FBI has been vacuuming 
up people's geolocation and their cell phones. Until recently 
they only started getting warrants for that.
    When Federal agencies violate congressional law and the 
Constitution it is corrosive to our democracy, it undermines 
trust in the executive branch, and makes Members of Congress 
like me not want to give the executive branch any sort of rope 
to do additional things. It makes it hard for me as a Democrat 
to try to support things that the executive branch may want to 
do where they're asking for some sort of trust.
    They could stop it now. They could simply tell the agencies 
to follow the law and follow the Constitution. It doesn't 
require Congress to act. They can also put in incentives. I was 
probably one of the few Members of Congress that actually 
worked on FOIA requests. When I was a young JAG, United States 
Air Force, I was responsible for doing these exemptions. And, 
of course, I met the deadlines always, but I also did notice 
that it didn't matter whether or not I met the deadlines. There 
were absolutely no consequences.
    And when you have delays of not just months but years, then 
what you have is not just people not caring, you have 
deliberate withholding of information. And, again, that is also 
corrosive to democracy.
    So it's my hope that Congress passes the law. Of course, we 
don't need to do that if simply the Federal agencies would just 
follow the existing law.
    With that, I yield back the balance of my time.
    Chairman Chaffetz. I thank the gentleman.
    Mr. Connolly. Mr. Chairman, can I just correct the record?
    Chairman Chaffetz. Sure. Go ahead.
    Mr. Connolly. My friend from South Carolina caught the 
error. I indicated that the letter, the memo, from the White 
House dated 1988 was during the administration of George H.W. 
Bush. Obviously it was Ronald Reagan. And I correct the record. 
Thank you, Mr. Chairman.
    Chairman Chaffetz. I appreciate you doing that.
    I now recognize the gentleman from Michigan, Mr. Walberg, 
for 5 minutes.
    Mr. Walberg. Thank you, Mr. Chairman.
    Let me ask Ms. Attkisson, based on your experience, what 
agencies have excessively used exemptions as was referred to by 
the preceding questioner?
    Ms. Attkisson. I haven't dealt with all of them, but among 
the ones I've dealt with and most recently, I've gotten 
documents that have been, in my opinion, overly redacted from 
the State Department and Health and Human Services. The 
documents I keep showing with these (b)(5)s--there are tons of 
these, I just pulled out a few--are about healthcare.gov. And 
these are just emails about our business, nothing about 
national security, nothing that could possibly put us in danger 
or help terrorists, I don't think. These are conversations that 
they are saying were part of a deliberative process, which 
pretty much they've used to say everything they do is part of a 
deliberative process until they put out a public press release 
announcing something they've done.
    Mr. Walberg. Take a little more time to explain the (b)(5) 
exemption. I understand it's basically called the ``withhold it 
because you want to'' exemption.
    Ms. Attkisson. That's a nickname that has been given by 
people who have seen it overused and feel that the agencies 
have come to use it for anything that they want to withhold. 
Even though I think the intention was--I don't know what the 
intention was. I'm not a FOIA law expert about how it was 
created, but it seems to me it was to protect certain materials 
that could be very sensitive because maybe they were 
deliberating something internally and between agencies that 
would be bad for the public to know about. But that should be 
interpreted very narrowly, as all, I think, FOIA exemptions 
should be interpreted. Instead they slap that on just about 
anything they want to withhold.
    Mr. Walberg. Mr. McCraw, would you concur with that about 
the (b)(5) exemption?
    Mr. McCraw. It is widely overused. It was intended to 
provide a certain amount of privacy to deliberation while a 
decision was being made so that people could give frank advice 
to leaders of an agency. I think once a decision is made that 
consideration falls away, but we see (b)(5) being applied to 
historic documents long after the deliberations are over.
    The other thing I would raise is that the law has generally 
been interpreted that the facts should be released even if it's 
in a memo that's providing advice, if it summarizes a factual 
situation. We find that agencies don't take that step. And 
sometimes those facts are more important to us than the advice 
that ultimately is given in a conclusion.
    Mr. Walberg. Mr. Leopold, have you experienced an increase 
in agencies' use of exemptions over the last several years?
    Mr. Leopold. Indeed, and (b)(5) would certainly fall within 
that overuse of that exemption. I deal with many agencies, CIA, 
NSA, Department of Defense, so it's understood that certain 
information that I'm seeking, certain documents that I'm 
seeking, that there's going to be other exemptions that are 
used, exemptions like (b)(1), the national security exemption. 
Oftentimes, though, it becomes clear when these cases go to 
court that some of the information that is being withheld is 
being withheld to protect the government agencies or the 
administration from some sort of embarrassment, even the 
national security exemption. Those exemptions are used across 
the board at all government agencies.
    I also just want to make a point here, since Mr. Cummings 
brought it up, about what could be done in this bill that 
you're working on. Please put something in the bill that holds 
some of these agencies and some of the FOIA officers 
accountable. There is no penalty at all for routinely violating 
the law, violating FOIA. So they can do it at will, and they do 
it, and there is no accountability whatsoever, there are no 
repercussions at all as a result of that.
    Mr. Walberg. I appreciate that.
    Ms. Goodman, what's your experience with agencies 
excessively using exemptions to redact information in FOIA 
    Ms. Goodman. I was just going to say maybe if a FOIA 
officer overly redacts, they could just be docked one week's 
pay, and I think you'll see a huge difference in the kind of 
responses you get.
    I don't regularly use FOIAs. Actually, I would like to 
defer that to Mr. Leopold and Ms. Attkisson. In my case, unless 
I want to wait a long time for something, I don't do it.
    Mr. Walberg. Okay. Well, let's go back to that, as far as 
redacting. Has there been a significant increase in agencies 
excessively redacting in FOIA requests?
    Mr. Leopold. I've certainly seen more documents that I 
request are increasingly redacted. The Defense Intelligence 
Agency recently sent me 150 pages of completely redacted pages 
related to----
    Mr. Walberg. We have experienced the same on this 
    Mr. Leopold. This was quite stunning, and I'm trying to 
figure out how I can turn it into some sort of art display. But 
these were completely redacted pages related to the damage 
assessment that the Defense Intelligence Agency undertook with 
regard to the alleged damage that resulted from the leaks from 
Edward Snowden.
    Mr. Walberg. Thank you. We believe it's a new font.
    But my time has expired. I yield back.
    Chairman Chaffetz. I thank the gentleman.
    I will now recognize the gentleman from California, Mr. 
    Mr. DeSaulnier. Thank you, Mr. Chairman.
    This hearing is reminding me of a comment that a friend of 
mine who used to serve on the Los Angeles City Council used to 
say about government agencies. She used to say: I used to 
believe in conspiracies until I discovered incompetence. And 
sitting here today, I can't help but think there's a little bit 
of both.
    But to the point of both the chairman's comments and others 
as to what is the motivation and the consequences. So, first of 
all, Mr. McCraw, having hearing what others have said, 
particularly Mr. Leopold and Ms. Attkisson, if we get the 
exemptions really tightened up, absent personal consequences 
for people withholding this, don't you think we need both?
    Mr. McCraw. Need both personal consequences and----
    Mr. DeSaulnier. And the exemptions tightened up.
    Mr. McCraw. And exemptions.
    Mr. DeSaulnier. So if you go to court and you get the 
exemptions tightened up but people continue to ignore the 
statutes, what good will it do.
    Mr. McCraw. That's right. I do think that there should be a 
process by which if there is willful disregard for the law, 
that there should be consequences that go back to those folks 
who are actually doing the disregarding.
    Mr. DeSaulnier. So maybe, Mr. Leopold and Ms. Attkisson, 
since you have both brought up personal consequences, what do 
you ascribe that to? That they are protecting the culture of 
the agency? Are they protecting political influences? Is it a 
combination of all of those? And have either of you or any of 
you ever seen examples of people sort of the reverse, being 
punished for doing what you're accusing them of doing, which is 
avoiding the letter of the law?
    Mr. Leopold. To your latter question, no, never. I don't 
know what the reason is that certain agencies just simply will 
not give up records. Let me give you an example of the Office 
of Net Assessment.
    The Office of Net Assessment is the Pentagon's in-house 
think tank. They spend millions and millions of dollars putting 
together reports, reports that they contract out about perhaps 
some futuristic warfare or what the situation in the Middle 
East is going to look like with regard to oil.
    I asked for those reports. I filed a FOIA request. They 
refused to comply with my FOIA request. They said it was too 
broad. I narrowed it. They still said it was too broad. I sued 
them. Recently they said that: We'll give you some documents as 
long as you promise to never file a FOIA request again and 
don't have anyone else file a FOIA request on your behalf.
    Mr. DeSaulnier. How is that legal?
    Mr. Leopold. I don't know, but they put this in writing, 
and I'm really looking forward to the day when I write the 
story up.
    Mr. DeSaulnier. Did you tell them no?
    Mr. Leopold. Yes. My employer, who is sitting right here, 
did tell them that.
    Mr. DeSaulnier. It was meant as levity.
    Mr. Leopold. I don't know why they simply will not turn 
over these reports. They're not classified, okay. By the way, 
not only will they not give up the report, they can't find the 
reports. So they're saying that they won't give me the reports, 
but at the same time they're also saying: We don't know where 
they are. So millions of dollars of taxpayer dollars are being 
spent. I think the public has a right to find out about what 
these reports are.
    Mr. DeSaulnier. Before Ms. Attkisson goes ahead, just so I 
can try to get the second part of the question in.
    Ms. Attkisson. I think it's as simple as there are no 
repercussions if they withhold material that they should 
release, but there may be repercussions for them if they 
release material that we want when their superiors wanted them 
to withhold it.
    Mr. DeSaulnier. Okay. We have tried to do FOIA, I 
understand. So it seems to me in this day and age where we have 
search engines that can give you all kinds of information, 
wouldn't it be more efficient if all of the agencies just were 
required to do everything electronically, and then we could 
actually reduce the period of time from 20 days down further? 
And do you have examples either where that's worked or----
    Ms. Attkisson. I think even starting today, because it's a 
big job of course, but if starting today the agencies posted 
online routine business and emails and so on as they come in, 
they wouldn't have to deal with all the FOIA requests, multiple 
FOIA requests for the same information from different people, 
which costs more money and staffing and time.
    Mr. Leopold. I routinely check all the government Web 
sites' FOIA reading rooms.
    Mr. DeSaulnier. I saw that.
    Mr. Leopold. They're not regularly----
    Mr. DeSaulnier. You live an exciting life, Mr. Leopold.
    Mr. Leopold. Thank you, yes. It's quite exciting. Thank you 
for that.
    But I do check their reading rooms regularly, and they 
don't update it. They don't update their reading rooms with 
documents, which they should.
    But in terms of electronically, I mean, I file requests 
electronically, I get responses electronically, and oftentimes 
I do get records, even though they're heavily redacted, 
electronically as well. So I think that on that end it's 
working to some degree.
    Mr. DeSaulnier. Thank you.
    Thank you, Mr. Chairman.
    Chairman Chaffetz. I thank the gentleman.
    I recognize Mr. Mulvaney from South Carolina.
    Mr. Mulvaney. Thank you, Mr. Chairman.
    And I want to go back and address some of the issues that 
Mr. Connolly raised. I appreciate Mr. Connolly making the 
clarification regarding the origin of the document from 1988. 
It wasn't the Bush administration. It was the Reagan 
administration. But I think that there's something more to it 
than that.
    Mr. Connolly suggested that the policy enacted in the 
waning days of the Reagan administration were the exact same, I 
think was his language, the policies were the exact same as the 
memo that the chairman cited from the early days of the Obama 
administration. He's already read that language from 2009.
    The policy from the Reagan administration, with all due 
respect, was entirely different. It said that in processing 
requests from the Freedom of Information Act of the Privacy Act 
of 1974 the search for responsive records occasionally turns up 
White House records located in agency files. It goes on to say 
later on that records originating with or involving the White 
House office--and it specifically identifies what that means, 
deputy chief of staff, communication, speech writing, research, 
public affairs, et cetera--that if you find some of those 
things you have to call the White House Counsel.
    Then it goes on to say that press briefings are not covered 
because they are in the public domain. It says that if stuff 
comes to the Executive Office of the President, the White House 
would like to see that. And then finally, if they're classified 
or sensitive regarding foreign relations, that you might want 
to call the White House before you respond to a FOIA request on 
    That is entirely different, entirely different from this 
administration's memo of 2009 which dealt not only with FOIA, 
but with congressional requests, GAO requests, judicial 
subpoenas, everything to every single agency for anything that 
had anything to do with White House equities. So I think to 
characterize the two as being exactly the same or even similar 
is wrong.
    Which leads us to the issue that I think everybody is sort 
of afraid to talk about because we have had a really good 
couple of hearings here with some bipartisan support on the 
issues, and clearly there are folks on both sides of the aisle 
who don't like what's happening here, but I don't think you 
could ignore what the chairman raised in his comments just a 
few minutes ago, which is it's different now, isn't it? It's 
different now than it was 5 years ago, 10 years ago.
    Ms. Attkisson, you said that it wasn't really because there 
were some bureaucrats who go from administration to 
administration, but it's different now, isn't it?
    Ms. Attkisson. I don't know the whole picture, but you 
found this memo from the Obama administration and you found one 
from the Reagan administration and I saw one like that under 
the Clinton administration. So something is happening. It's as 
if the Department of Justice gets the memo with a new President 
and issues the standard memo. Even though there may be 
variations in the specifics, this memo goes out to everybody 
saying something like that.
    Mr. Mulvaney. But it is, you didn't come here during the 
George W. Bush administration to have this hearing. This is not 
easy for you all to do. You said that, some of you, in your 
opening statements. You didn't come here during the Clinton 
administration. You're here now. It's different now, isn't it? 
It's worse now than it was before or else you wouldn't be here.
    So I guess my question is this. We count on you folks to do 
something. You're the fourth estate. We're counting on the 
press to do its job, to do investigative reporting. Has anybody 
written on this? I mean, this is a big deal. Now is your 
chance. Mr. Leopold, have you written on this?
    Mr. Leopold. On this being what?
    Mr. Mulvaney. The inability to get documents through FOIA 
from this administration.
    Mr. Leopold. Yes, extensively.
    Mr. Mulvaney. Ms. Attkisson, have you written about this?
    Ms. Attkisson. I haven't. Associated Press has done some 
excellent work on this. But I would say it's hard to tell in a 
short story. And TV, it's hard visually, I think TV people 
think it's hard to tell. I think there's a way to do it, and I 
also argue that we should be doing it frequently because that 
kind of pressure would help shake things loose as much as 
anything else, I think, if we covered it.
    Mr. Mulvaney. Ms. Goodman, you said something that caught 
my attention, which is about the chilling effect, and I think 
someone earlier asked you the fact that there's no Washington 
area editors here, and that you were afraid about repercussions 
when it comes to access in the future, I think is your words. 
Again, I'm paraphrasing. I don't mean to put words in your 
mouth. It would be more difficult for you to get information 
going forward. Is that about what you testified?
    Ms. Goodman. I think the reason why you haven't seen a 
journalist do a macro story on a bunch of agencies and how they 
might be stonewalling, or increasingly stonewalling, is because 
they may need to call those agencies in the future and work 
with them, and it's sort of seen as tattling on the playground. 
You know, we all have to be in this playground and we're 
supposed to play friendly.
    But what I'm finding, I do think that I am seeing over the 
last I would say decade, I would say really since September 11, 
I have seen this fear culture that Mr. McCraw had referred to 
earlier, and it is don't let those journalists get anything. 
It's exactly what Ms. Attkisson said about there's a punishment 
or the idea that you messed up if you give those journalists 
anything that they might use that will humiliate or embarrass 
or show that this fear culture has really gotten out of control 
to the point where it's taking away our liberties.
    Mr. Mulvaney. So let me ask you one last difficult 
question. By the way, I recognize the fact it's not easy to do 
this, especially given what you do for a living, because you 
expose yourself to exactly that type of risk. But I have to ask 
you the next question, because you specifically mentioned in 
your opening testimony that it was somewhat worrisome, I don't 
remember your exact language, dealing with the DOJ and the IRS. 
So I guess my question is, are you worried about repercussions 
that go beyond just access to information?
    Ms. Goodman. Always.
    Mr. Mulvaney. I will yield back. Thank you.
    Chairman Chaffetz. I thank the gentleman.
    I now recognize the gentleman from Massachusetts, Mr. 
Lynch, for 5 minutes.
    Mr. Lynch. Thank you, Mr. Chairman. It's a great hearing.
    I want to thank the witnesses for your input. I actually am 
the ranking Democrat on the National Security Committee, and I 
have a hard time. I've got top secret clearance and try to get 
information from the agencies that you are complaining about 
and the FBI and Department of Defense. And I have to say it's 
very, very difficult even under the circumstances we're under 
where you go into a secure room and you're not allowed to take 
notes and got to give up your electronics and then try to parse 
through some of these documents. So I am totally with you.
    I just want to offer a couple of examples. With the FBI, 
through FOIA, we are able to get information that through their 
confidential informant program the FBI in 2011 and in 2012 
allowed their confidential informants to commit crimes between 
5,000 and 6,000 times. But when I asked what are those crimes, 
that is confidential. And when I asked how much are you paying 
these confidential informants, housing, payments, and a lot of 
them are career criminals, that is confidential. So we're 
facing the same basically shutdown in transparency that you all 
    The Department of Defense, recently the commanding general 
in Iraq, we on a quarterly basis get reports from the inspector 
general for the Department of Defense, and he tells us how much 
money they're spending and what they're spending it on. Well, 
the commanding general, General Campbell, recently said that 
Congress is no longer going to be able to get those classified 
reports on what they're spending, and the reason was because if 
the insurgents got that, if the terrorists got that 
information, it might somehow undermine their effort. So it is 
absolutely ridiculous.
    So I want to get to something. And then even this morning, 
this morning I was at a press conference with some of my 
Republican and Democratic colleagues to try to get the 28 pages 
that have been redacted from the 9/11 investigation, trying to 
get that 28 pages, because I think it is very important that 
the American people get that information, that the families get 
that information. And I also think that the information in that 
28 pages will inform Congress' security protocols and 
antiterrorism efforts enormously going forward. So it's good to 
have that information out there for instructive purposes.
    So what I want to get at is, Ms. Attkisson, what you 
suggested in the beginning. You said we need to incentivize 
corporation and disincentivize the logjam. And I do believe 
that we have to criminalize--look, there's constitutional 
rights involved here.
    Mr. Anderson, you were very articulate in your comments, 
the freedom of speech, the freedom of the press. There's also 
the freedom to petition your government, which I think implies 
a right to get a response.
    So I do believe, I do believe, we have to penalize this 
ridiculous and obstructive conduct, number one, that amounts to 
criminal obstruction of justice and of information by our 
government agencies. I also think we need to turn it around so 
that the costs, the costs of citizens, including the press, in 
getting that information that is delayed unreasonably, the 
costs of all that with penalties should be borne by the agency 
so that we have direct responsibility on these agencies to 
respond. You have to incentivize good behavior. What we are 
looking for is them to be more responsive.
    So I actually think we do need to have criminal or civil 
penalties against these individuals that are conducting this 
obstruction and again shift the costs on behalf of the 
taxpayer. I realize that eventually we pay for everything, but 
you need to penalize these agencies in some way so that it 
changes their behavior.
    I've eaten up the bulk of my time, but if any of you have a 
thought on that, I'd like to hear it.
    Mr. Anderson?
    Mr. Anderson. Yes, sir. I think it's significant that 
you've heard here stories, not just from this administration or 
the previous administration or the administration before that. 
My adventures took place beginning in 1992.
    Mr. Lynch. Yeah. God bless you, by the way.
    Mr. Anderson. And Senator Moynihan issued his report after 
2 years of study about the same time in the mid-1990s, and I 
don't think any of us would suggest that the situation has 
gotten any better.
    Mr. Lynch. Thank you, sir. I yield back.
    The Chairman. I thank the gentleman.
    I now recognize the gentleman from Georgia, Mr. Hice, for 5 
    Mr. Hice. Thank you, Mr. Chairman.
    I want to begin with you, Ms. Attkisson, if we can. You 
mentioned in your testimony that the system is broken and that 
the Freedom of Information Act, in your opinion, is not broken 
by accident, but that it appears to be by design, a design of 
obstruction. Do you have evidence that you could provide for 
that statement? It's a strong statement.
    Ms. Attkisson. I could probably compile something for you. 
It's repeat patterns from the same officials who at the end of 
the day have been found to have been holding documents that 
were legitimately public documents or redacted things that were 
improper or go to the courts over and over again only to at the 
end be told by the court that they should have provided this 
material originally and initially.
    The patterns of the language they use when they're denying 
requests, the increase in the (b)(5) exemption almost as if 
there's been some coordination among the agencies that they 
know they can expand the use of certain exemptions in certain 
ways, the across-agency language that has bloomed up more 
recently where they want you to narrow your requests, where 
they say that they're overbroad.
    This is a fairly new one to me. Across the board the ones I 
deal with will say they don't understand it. I never used to 
get that. Now they say they don't understand your request. The 
request is very simple and straightforward.
    So this, along with a lot of other anecdotal data, would 
lead anyone with commonsense to believe that there is some sort 
of willfulness. And also I've talked to FOIA officers, 
including one I reported a story on who used to work at the 
Commerce Department who talked about willful plans to withhold 
documents from the public and Congress.
    Mr. Hice. Would you please provide that information to this 
    Ms. Attkisson. Yes, sir.
    Mr. Hice. Thank you.
    If we can, I'd like a yes or no answer as much as possible 
from each of you, because I want to cover a couple of questions 
pretty quickly. Have each of you seen the breakdown in FOIA 
increase under this administration? I know we have had that 
question a couple times. Just yes or no, whatever your answer, 
Ms. Attkisson.
    Ms. Attkisson. I don't have an apples-to-apples comparison.
    Mr. Hice. Okay.
    Mr. Leopold.
    Mr. Leopold. Yes.
    Mr. Hice. Okay.
    Mr. McCraw.
    Mr. McCraw. No, I don't think it's worse than before.
    Mr. Hice. Okay.
    Ms. Goodman.
    Ms. Goodman. I think that there's more stonewalling now, 
    Mr. Hice. Okay.
    Mr. Anderson. I don't qualify.
    Mr. Hice. You don't qualify. Okay.
    All right. With that, again yes or no, and this can go all 
the way back to 1992, whatever, but yes or no, do you believe 
that--obviously personnel, at least as a general rule, do not 
act without some directives from superiors. So from your 
experiences, do you believe that be it the current 
administration or other superiors are giving directives to 
agency personnel to obstruct FOIA requests?
    Ms. Attkisson. Yes, and I've been told that firsthand by 
    Mr. Leopold. I can't answer that question. I have no 
evidence to support it.
    Mr. McCraw. I agree with Mr. Leopold's answer.
    Mr. Hice. Okay.
    Ms. Goodman. I would say yes, yes.
    Mr. Anderson. It seems to be more a matter of culture 
rather than directives. It's not necessary to order a 
bureaucrat to keep secrets.
    Mr. Hice. Okay. Well, even there, a culture doesn't just 
happen by accident. Cultures are created. All right.
    Yes or no again, one more time, have you personally 
experienced delays that you believe were designed to wait out 
the usefulness of the FOIA requests that you made?
    Ms. Attkisson. Yes, sir.
    Mr. Leopold. Can I say hell yes? Yes.
    Mr. Hice. You just did. Okay.
    Mr. McCraw. I don't have the evidence of that, but it 
certainly would appear that way at times.
    Ms. Goodman. I agree with Mr. McCraw, same thing. It looked 
like they're running down the clock, but I couldn't prove it.
    Mr. Anderson. Absolutely. I think that was the entire 
purpose of the exercise.
    Mr. Hice. Okay. All right. So, obviously, there is a 
problem here that is intentional, at least from every one of 
your perceptions. This is not accidental happenstance, this is 
purposeful. When we're dealing with a First Amendment that 
guarantees freedom of speech, you are prohibited from providing 
freedom of speech in your careers.
    Mr. Chairman, I'm just concerned that these agencies, under 
whatever directives, be it from the White House or whatever 
authorities, are deliberately delaying and obstructing FOIA 
requests in order to hide politically sensitive information or 
whatever information they simply don't want the public to have. 
And this is something that we need to pull up by the roots, 
sir. And I thank you for having this hearing today. I yield 
back my time.
    Chairman Chaffetz. I thank the gentleman.
    I will now recognize the gentlewoman from Michigan, Mrs. 
Lawrence, for 5 minutes.
    Mrs. Lawrence. Thank you, Mr. Chairman.
    One thing I think has been clearly documented today, that 
we have a problem. It's a problem that didn't start with this 
administration because we talked about a culture and those who 
wait out administrations. So I want to shift it a little bit to 
how can we move beyond this.
    The proposed Freedom of Information Act would allow OGIS, 
which is Office of Government Information Systems, the 
discretion to issue advisory opinions. The OGIS could issue an 
advisory opinion at the request of any party using that 
office's mediation services.
    Mr. McCraw, do you think this provision is workable, and 
would it help OGIS in its mediation efforts?
    Mr. McCraw. Yes, it would, Ms. Lawrence. That is a model 
that is used in many States, including New York State. There is 
a Committee on Open Government, which is a part of the 
Department of State, of New York State. They issue nonbinding 
opinion letters. Very helpful to us to know, you know what, 
we're asking for too much. Very helpful when we get one that 
says the agency is not doing what it should be doing. And a lot 
of times we can use that with the agency to change its 
    Mrs. Lawrence. I want it on the record that I feel that the 
concerns about docking someone's pay or culture, that if we 
want effective government we have to find a way to move to the 
point where we are effective. I'm very concerned about the same 
conversation being where we're cutting staff, we're cutting 
funding. And the records have shown that, therefore, the 
Department of Justice alone, they received 64,000 requests last 
year alone. And then we consistently see staffing and budgets 
cut. So I feel that the proposed mediation process will help on 
both sides.
    I have one other question, Mr. McCraw. These assessments 
will be provided directly to Congress while continuing to serve 
as a neutral, impartial mediation in the FOIA disputes. In your 
view, can OGIS provide candid assessments--you referenced New 
York--about agency performance without compromising its ability 
to serve as an impartial mediator in these disputes?
    Mr. McCraw. You raise a very good question, and the 
mediation part is different than it is under state law in New 
York where that office did no provide those services. It's 
there to reflect on what the law should be and how it should be 
    I have seen in New Jersey where they offer up mediation 
services through their state agency that oversees. And you can 
have it both ways, just as courts do it. It requires capable 
people. But it's not uncommon in Federal court to have the 
district court say the magistrate would like to mediate this or 
the district court judge himself or herself. So, yeah, I think 
it can be done. It's worth trying.
    Mrs. Lawrence. Ms. Attkisson, are you coming back?
    Ms. Attkisson. Yes, ma'am. I'm sorry. I have to go to the 
ladies' restroom.
    Mrs. Lawrence. Okay.
    I just want--I want a government that is responsive. I have 
worked with two government agencies and have been the official 
FOIA coordinator. Some requests seem excessive, some requests 
you can get from multiple agencies, but every single request 
requires manpower to respond.
    There is a frustration when the media--and not only the 
media, requests from private citizens. Because this is bigger 
than just the media. I have a right, as a private citizen, to 
ask for information, and I feel that I deserve that. But we 
have to create an efficiency in our government that can be 
responsive. And while I hear the concerns of the media, I'm 
concerned about our overall responsibility.
    I wanted to ask Mr. Leopold, what is your opinion of this 
mediation process and some of your frustrations that you've 
    Mr. Leopold. With regard to the Office of Government 
Information Services, I mean, basically, they have absolutely 
no power because the Office of Information Policy within the 
Justice Department that's supposed to ensure that all 
government agencies are adhering to Attorney General--former 
Attorney General Eric Holder's guidelines, they don't allow 
them to have any power. They're interfering with that role--
with that role of the FOIA ombudsman. So it gets much deeper.
    I want to also for the record state that I have never, ever 
received a response from any government agency, nor a phone 
call, that says, ``We are experiencing budget constraints; 
therefore, we can't process your request, nor can we give you 
any records.'' Never heard that before. So I recognize that 
budget constraints exist within the Federal Government, but it 
has never, ever--I've never heard of it impacting my ability to 
access records.
    And, you know, one thing about--one great thing about FOIA 
is that you cannot only--you don't--in addition to filing FOIA 
requests, you can actually file a request to find out how the 
specific agency is handling your request. I like to call it the 
    Mrs. Lawrence. Yeah.
    Mr. Leopold. And I ask for processing notes, and within the 
processing notes you can see how these agencies are handling 
the requests.
    And, within the Office of Information Policy, I could tell 
you that I've obtained documents with regard to one of my 
requests where the FOIA officers and the attorneys are actually 
making fun of me and saying that I should belong to some sort 
of FOIA posse and perhaps that should even be my band name, 
which I think is--you know, may actually be a cool band name, 
but the point being that, you know, the FOIA cop is not doing 
its job and not allowing the FOIA ombudsman to be the FOIA 
    Mrs. Lawrence. Before I release my time, Mr. Chair, I just 
want to say, you bring up a good issue. Because if we need to 
give the power to that mediation body, the autonomy and the 
authority so that they can do their job, that's something we 
should look at in this act.
    Thank you very much.
    Chairman Chaffetz. I thank the gentlewoman.
    We'll now recognize the gentleman from Georgia, Mr. Carter, 
for 5 minutes.
    Mr. Carter. Thank you, Mr. Chairman.
    And thank each of you for being here today. We appreciate 
you taking time out to join us and participate in this.
    Mr. Anderson, I've got some questions for you specifically, 
if it's okay. You mentioned in your testimony that you had, 
like, a 2-1/2-year battle with over 13 agencies for your FOIA 
request? Is that true?
    Mr. Anderson. Yes, sir. I have to say that some of the 
agencies didn't take part in the battle; they simply retired 
and didn't take notice. But the Federal judge here appointed a 
special master--which he doesn't want to look at the things 
himself, so he gets somebody who can do it.
    Mr. Carter. Right.
    Mr. Anderson. And we kept arguing over a progressively 
smaller and smaller pool of documents. As I would--he would win 
an order, I would get an order from him to say, ``No, you can't 
deny those documents; give them to him''----
    Mr. Carter. Right.
    Mr. Anderson. --and I'd get a couple of boxes. And then the 
next time we'd have another go-around.
    And the significant thing to me was--and I don't know if 
this is still very common--FOIA has specific requirements for 
when you deny access. You're not allowed to just say, no, it's 
hodgepodge, you can't do that, you can't have it. You have to 
specifically justify not only each document but each part of 
the document as to what exemption you're claiming.
    Mr. Carter. Right.
    Mr. Anderson. And it took us a year to get them to even 
give that list. Because, universally, when the first replies we 
got were, no, can't have it, secret, classified, no----
    Mr. Carter. Right. Well, let me ask you----
    Mr. Anderson. --they were violating--from the beginning, 
they violated all of the deadlines, they violated the 
regulations. And all that happened was the judge eventually 
said, you know, give him all the documents he wants.
    Mr. Carter. Okay. Well, did you ever go through the appeals 
    Mr. Anderson. Yeah. Absolutely. I----
    Mr. Carter. Did you have to do it with all 13 or just a 
    Mr. Anderson. Yeah.
    Mr. Carter. --of them? With all 13----
    Mr. Anderson. Yeah.
    Mr.Carter. --you went through the appeals process.
    Mr. Anderson. And some of those appeal processes were 
simply never completed.
    Mr. Carter. Did a certain agency have a--were the appeals 
processes consistent among all the agencies----
    Mr. Anderson. No.
    Mr. Carter. --or were they different? They were different 
among all the agencies?
    Mr. Anderson. Yeah. Each of the agencies was different.
    Mr. Carter. Which one was the most difficult, would you 
    Mr. Anderson. I would say the two was CIA and the NSA.
    Mr. Carter. Okay.
    Mr. Anderson. They both seemed to feel that nothing that 
they handled should be given to the public.
    Mr. Carter. Well, they must have been very difficult if it 
went on for more than 2 years, 2-1/2 years.
    Mr. Anderson. The whole thing took 4 years.
    Mr. Carter. Wow.
    Do you believe that the appeals process was clear for any 
of these agencies? Do you believe that they had a clear, stated 
policy of what the appeals process was supposed to be?
    Mr. Anderson. Yes, sir. I believe the whole process is 
pretty clear. The regulations are clear; the law is clear.
    Mr. Carter. Was it clear to you about what the process was 
going to be like and what your rights were during the appeals 
    Mr. Anderson. Not at the beginning. I went--you see, I 
worked mostly overseas. I was a foreign correspondent.
    Mr. Carter. Right.
    Mr. Anderson. And there aren't any other countries that 
have, you know, a Freedom of Information Act that you can file 
for information on.
    Mr. Carter. Sure. Sure.
    Mr. Anderson. So when I came here and I told the people at 
the Freedom Forum this is what I'm going to do, I actually 
showed up early and said, I want to start these requests now, 
and I'm due to start my fellowship in 3 months, and when I get 
here, I'll have replies already from some of these agencies, 
and I can get started getting to work. And the director just 
laughed. He said, ``You've never done one of these before, have 
you?'' And I said, ``No, sir.''
    Mr. Carter. Right.
    Mr. Anderson. And he said, ``Okay. You'll learn.''
    Mr. Carter. Well, I don't know if you're familiar or if any 
of the panel members are familiar--and don't know that there 
would be any reason. I have introduced a bill, H.R. 1615, and 
it is called the DHS FOIA Efficiency Act of 2015. And it deals 
primarily, obviously, with DHS because, as I suspect you know, 
DHS has the largest backlog of any agency within the Federal 
Government, and it's something that I'm trying to address 
through this bill.
    And it requires the chief FOIA officer of DHS to issue 
updated regulations, particularly as it pertains to the appeal 
process. And what I want to ask you is that, although this is 
obviously specific to DHS, do you feel like a standardized 
process would be beneficial throughout all agencies?
    Mr. Anderson. I think, yes, it would be beneficial. Making 
things standardized and clear to everybody is always beneficial 
in these--in these things. Yeah.
    Mr. Carter. And, Ms. Attkisson, would you agree?
    Ms. Attkisson. Yes, sir. Any clarity, I think, is always 
good. But I still think it goes back to the heart of the idea, 
if there are directives or a culture in which they're being 
told to find excuses not to give material, that may not be, you 
    Mr. Carter. Right.
    Ms. Attkisson. --as effective as it should be.
    Mr. Carter. Well, I would encourage all of you--and I want 
to thank all of you again for participating. I want to 
encourage you to keep an eye out for this because this is 
something we're going to be pushing very hard, again, H.R. 
    Thank you, Mr. Chairman, and I'll yield back.
    Chairman Chaffetz. I thank the gentleman.
    We'll now recognize the gentlewoman from the Virgin 
Islands, Ms. Plaskett, for 5 minutes.
    Ms. Plaskett. Good afternoon. Thank you all so much for the 
information and your testimony here today.
    Thank you, Mr. Chairman, for the opportunity to speak with 
these witnesses.
    I wanted to talk a little bit about the deliberative 
process and how that works and the timeframe in which it's 
    As a former Department of Justice official, I've sat around 
at the table in the Civil Division in discussions about what 
would or would not be part of a FOIA disclosure, and so it's 
very interesting for me now to be on this side and having this 
discussion with you about the impediments it creates in terms 
of transparency and having checks and balances in our 
government with the press.
    So my understanding, from having worked previously as a 
prosecutor, is that the exemption covers information that would 
normally be privileged in the context of civil discovery. And 
the tenet is that it's supposed to allow the attorneys the 
process and the ability to be able to have conversations and to 
begin deliberation and investigations.
    Mr. McCraw, would you agree that that is the basic tenet 
and what it's supposed to do?
    Mr. McCraw. You've described it well.
    Ms. Plaskett. Okay.
    Now, the exemption is described, ``To safeguard the 
government's deliberative policymaking, the exemption 
encourages frank discussion of policy matters between agency 
officials by allowing supporting documents to be withheld from 
public disclosure.'' And that's in the ``Citizens Guide to 
FOIA'' published by this committee in 2012.
    Does that sound right to everyone in this committee, that 
that's the purpose of it? And that it's supposed to be limited 
to an exemption for up to 25 years.
    Mr. Leopold, what do you think about that 25-year timeframe 
in which those documents could be withheld?
    Mr. Leopold. Well, in terms of withholding them 
permanently? Or----
    Ms. Plaskett. Well, I mean, the rationale is that----
    Mr. Leopold. --saying sunset?
    Ms. Plaskett. Right. There's a limited amount of time that 
the agency is allowed to keep this information, and that's 25 
years that they're supposed to be able to withhold it.
    Mr. Leopold. I'd like it tomorrow. So, I mean, whether----
    Ms. Plaskett. But do you agree that there is some 
information that may be----
    Mr. Leopold. Sure.
    Ms. Plaskett. --and to allow the attorneys to engage in 
proper investigation, that they should be withheld for a time 
    Mr. Leopold. Yes, I agree that, when properly used, when 
Exemption 5 is properly applied, yes, that it should--that the 
information should be withheld.
    Ms. Plaskett. And who do you think would be the appropriate 
persons or person or agency to police that properly?
    Mr. Leopold. I think the Office of Information Policy. I 
mean, they are the--you're going to have Melanie Pustay here 
tomorrow, and I'm going to be back there listening.
    Ms. Plaskett. Are you going to be holding up stuff, 
questions for us, so you can prompt us with what you think?
    Mr. Leopold. If you send me your email address, I'll send 
you a long list of questions.
    Ms. Plaskett. Okay. Great.
    Mr. Leopold. One of them being, how come she has yet to--
her office--turn over my request for emails that actually 
mention FOIA? I asked 2 years ago for emails that mention FOIA 
and haven't seen those yet.
    To answer your question, I think that the Office of 
Information Policy--in fact, I don't think; they are the ones 
that are supposed to ensure that, you know, these agencies are 
adhering to, as I said, Attorney General--former Attorney 
General Eric Holder's guidelines.
    Ms. Plaskett. Now, you know, my understanding is, 
particularly from the freedom-of-information side and from the 
press side, that this is--most things are so subjective. So 
determining what should fit within this and what should not can 
lead to broad redactions.
    And, Ms. Attkisson, you talked about that, that this can 
be, you know, so broad--used with a broad stroke that you have 
complete black pages in FOIA requests.
    You used the term ``withhold it because you want to'' 
exemption. Can you talk a little bit more about that?
    Ms. Attkisson. You discuss the context of privilege, maybe 
sort of an attorney-client privilege, but the example I used 
today and many examples I have are emails to a huge group of 
civilians, nonlawyers, who have emailed one another information 
about the public's business. Sometimes there are 50 people on 
the email, and they can all know about the public's business, 
and yet we are to not. And these are public officials being 
paid our money.
    And I think it's very hard to justify just thousands and 
thousands of pages of these types of redactions. It's hard to 
know what's in them since they've redacted them, but it's 
pretty clear, when you see the pattern, that the redactions are 
so broad that they can't possibly apply to a narrow sort of 
attorney-client privilege, at least in those cases.
    Ms. Plaskett. So, Mr. McCraw, would you agree----
    Chairman Chaffetz. Thank----
    Ms. Plaskett. Okay. I see my time----
    Chairman Chaffetz. My apologies. We have a second panel 
that's still yet to come, and we're trying--we also have votes 
that will come up, so I'm going to need to enforce the time 
    And we'll now recognize the gentleman from Alabama, Mr. 
Palmer, for 5 minutes.
    Mr. Palmer. Thank you, Mr. Chairman.
    The last question Mr. Carter asked Ms. Attkisson was 
whether or not you thought it would be beneficial to have some 
standard practice for requiring compliance with these requests, 
and you said yes.
    And then you, to paraphrase you, you added this little 
caveat, unless there is a culture that exists to the contrary--
a culture, as I interpret it, to avoid compliance. Is that an 
accurate assessment of what you said?
    Ms. Attkisson. Yes, sir. I think it's akin to, you know, 
the Titanic is sinking and somebody saying, ``Quick, hurry and 
rearrange the deck chairs.'' That won't make much difference in 
the big picture if the problem that's causing--or the big issue 
that's causing the problem isn't addressed.
    Mr. Palmer. Okay.
    Ms. Attkisson, Mr. Leopold, Ms. Goodman, you're all 
investigative reporters.
    Mr. McCraw, I assume that in your role as vice president 
and general counsel you have some idea about investigative 
    You all have expressed your frustration in your 
investigations of various Federal agencies in regard to the 
failure to comply with FOIA requests. Have any of you 
investigated or considered investigating FOIA violations?
    And you can answer ``yes'' or ``no.''
    Ms. Attkisson. Yes, sir.
    Mr. Palmer. You have? Good.
    Ms. Attkisson. I've considered and I've done some of it----
    Mr. Palmer. Okay.
    Ms. Attkisson. --yes, sir.
    Mr. Leopold. I not only have investigated it, I have 
written about it----
    Mr. Palmer. All right.
    Mr. Leopold. --extensively.
    Mr. McCraw. Like Mr. Leopold, we have FOIA'd the FOIA 
record to see how a prior request was being done.
    Mr. Palmer. Okay. Good.
    And in doing this, then, are you aware of any Federal 
agency being proactive and training employees on methods or 
tactics for avoiding compliance with FOIA requests?
    Mr. Leopold. I noted in my written testimony and my opening 
statement that the Pentagon has a policy in which FOIA requests 
that are deemed significant requests get department-level 
review. In other words, the process is politicized.
    Mr. Palmer. Okay. Let me be clear. How about a Federal 
agency actually conducting a session to train your employees 
how to work with nongovernment groups so as to do government 
business outside official government infrastructure and 
communications channels?
    We had a hearing in the Science Committee back in March, 
and one of the witnesses who testified is a former EPA 
employee, David Schnare, and he brought this up. And I have a 
copy of his testimony. I have it here.
    And he talked about the EPA prepared an 83-page PowerPoint 
presentation on how to use electronic tools to collaborate with 
external partners. ``This presentation encourages use of 
instant messaging, other realtime correspondence tools, and 
even encourages using AOL and Yahoo and asking third parties to 
set up chat rooms.''
    He went on to say, ``But this presentation also documents 
the culture,'' Ms. Attkisson, ``of disregard for agency duties 
under public regards and FOIA requirements. It characterizes 
FOIA and NARA rules as Federal laws that constrain Federal 
administration of public-facing Web collaboration tools.''
    I have a printed copy of the PowerPoint here.
    He says, ``The next section of the presentation describes 
creative solutions to dealing with Federal constraints.'' And 
here are the Federal constraints that they've mentioned: 
National Archives and Records Administration, Federal Advisory 
Committee Act, Paperwork Reduction Act, National Institute of 
Standards and Technology, and others.
    He says that, specifically, EPA encourages its employees to 
help outside parties to sponsor the Web-based collaboration 
tools, noting that, as long as we are only participants, not 
administrators of a Web collaboration site, the site is not 
limited by those same FOIA and Public Records Act constraints.
    How would you respond to that, Mr. Leopold?
    Mr. Leopold. You'll have to forgive me, but I am completely 
confused about that. I'm not quite sure what he's--you know, 
what he's saying there. So I'm not well informed about this 
idea and proposal.
    Mr. Palmer. Ms. Attkisson is eager to respond, so go ahead.
    Ms. Attkisson. Well, I understand what you're saying, sir. 
And I think--and I cut it from my verbal testimony for time, 
but there are new tactics. Even if FOIA is shored up, we've 
already seen that agencies--and I've written some on this--and 
officials instructs subordinatesto not put things in emails, to 
use instant messaging. Sometimes they use private service, 
private emails, pseudonyms, friends' accounts, and all kinds of 
other ways that even this problem wouldn't solve.
    Mr. Palmer. That are not subject to a FOIA request----
    Ms. Attkisson. Yes, sir.
    Mr. Palmer. --or any other public records request.
    I think--what I'm saying here, Mr. Chairman, if I may, is 
that you have a former EPA employee who, in testimony, sworn 
testimony, just in March, talked about what I consider a 
conspiratorial effort to avoid complying with Federal records.
    Thank you, Mr. Chairman.
    Chairman Chaffetz. I thank the gentleman.
    We'll now recognize the gentleman from Virginia, Mr. 
Connolly, for 5 minutes.
    Mr. Connolly. Thank you, Mr. Chairman.
    I come from a State, Virginia, where FOIA laws are actually 
very strict. I don't know how many of my colleagues on this 
committee actually were ever subject to FOIA. I come from local 
government, and I can tell you, in Virginia, my phone log was 
subject to FOIA, my schedule was subject to FOIA, my working 
documents were subject to FOIA, my files were subject to FOIA. 
And the county attorney was very strict about it, that, you 
know, you had 5 working days in which to respond. You know, if 
it was too much, we might ask the requester to help defray the 
cost of duplication, copying. But--there weren't really 
electronic files back then, but--so I'm used to a culture of 
very strict adherence to FOIA. We didn't engage in redaction or 
big exemptions. There were some exemptions involving privileged 
legal matters or personnel matters, but that was it. So, coming 
to the Federal Government, I'm somewhat surprised at this 
tension in how we implement FOIA.
    If we step back, though, Mr. McCraw, the First Amendment 
guarantees a free press; is that correct?
    Mr. McCraw. That is.
    Mr. Connolly. Is it not also correct, however, that the 
First Amendment fails in any way to enumerate the right of a 
free press to access to government documents?
    Mr. McCraw. It is not in the text, that's correct.
    Mr. Connolly. Correct.
    So, by virtue of adoption of the First Amendment, we also 
set up, whether we intended it or not, a dialectic. You want 
access to information, and there are some people who want to 
limit that or don't want you to have access to information. 
Fair enough?
    Mr. McCraw. That is true.
    Mr. Connolly. So what we're debating here are what are the 
rules of the road.
    Now, many of us, including the chairman of this committee, 
based on what he said, and certainly myself, believe freer 
access is better. The default should always be: Get it out 
before the public; let's see where the chips fall. But, I mean, 
there are some exemptions.
    And what I've heard here is an enumeration of, in a sense, 
bureaucratic obfuscation, using the technicalities of the law 
either with a (b)(5) exemption or redaction or not meeting 
deadlines in any kind of strict fashion and even saying, ``Your 
scope is so broad, we can't possibly respond to it,'' which 
sometimes, by the way--I've been subject to press FOIAs that 
were overly broad, that were impossible to respond to, and we 
had to negotiate with that reporter, ``Get it down, tell us 
what you're really looking for, and we'll try to respond.''
    So I take the points you make.
    And, Mr. Leopold, you said there ought to be penalties in 
whatever legislation we consider so that there's an incentive 
to comply rather than an incentive, as Ms. Attkisson ably put 
it, not to comply. Would you make those civil or criminal or 
both, in terms of penalties?
    Mr. Leopold. If I were king, I would make them both. I 
mean, there are--you know, there are numerous instances in 
which, you know, I've been in court and the government has 
outright lied about certain records, about whether they possess 
certain records, whether they'll process certain records. It's 
become, you know, very clear. So, yeah, I would make it both.
    Mr. Connolly. Okay.
    I just want to reiterate, though, the First Amendment kind 
of sets up this competition. And, you know, I'm more on your 
side than the other side on the competition, but there's not an 
absolute right guaranteed to access to any information.
    Mr. Leopold. No, there isn't, but I have the right to ask 
every Federal agency to give me every record that they have. 
They don't have to do that, and they have made it crystal-clear 
that they're not going to, but the law is clear.
    Mr. Connolly. Well, that's what I was----
    Mr. Leopold. The Freedom of----
    Mr. Connolly. That's what I was going to----
    Mr. Leopold. --Information Act is the law, and the law----
    Mr. Connolly. Mr. Leopold----
    Mr. Leopold. --is clear.
    Mr. Connolly. --that's what I was going to get at.
    So, to try to clarify the First Amendment, laws get 
adopted; FOIA law is one of them. And it's an imperfect 
vehicle, but it's one that needs to be perfected. And that's 
certainly a conclusion I draw after listening to your 
    It works sometimes. It doesn't work perfectly. And, at 
other times, there's outright obfuscation, and that needs to be 
addressed. And it's not unique to this administration, but, 
since we're in this administration, we need to deal with it, as 
    I thank the chair for the time, and I thank all of the 
panelists for being here today. It's a very illuminating 
    Chairman Chaffetz. I thank the gentleman.
    We'll now recognize the gentleman from Ohio, Mr. Jordan, 
for 5 minutes.
    Mr. Jordan. Thank you, Mr. Chairman.
    Mr. Leopold, has it gotten--I may cover some ground that's 
already been covered--has it gotten worse? FOIA requests and 
requests for information, has it been more difficult for you to 
get the information you've requested?
    Mr. Leopold. It is. It's getting increasingly worse with 
the passage of years.
    Mr. Jordan. And more redactions than you ever used to see?
    Mr. Leopold. Yes. I mean, the more I request, the more 
records I request----
    Mr. Jordan. More deliberative process exemptions than 
you've ever seen before?
    Mr. Leopold. Oh, that, there's no question. I mean----
    Mr. Jordan. More other exemptions that apply for certain 
agencies than you've ever seen before?
    Mr. Leopold. I definitely would say (b)(7)(A) at FBI is 
    Mr. Jordan. Is this the first time that you've testified in 
front of Congress?
    Mr. Leopold. It is.
    Mr. Jordan. So first time on any issue and certainly the 
first time on this issue?
    Mr. Leopold. First time on any issue. Probably the last 
time, as well.
    Mr. Jordan. Understand. Understand. Which tells me 
something, on both ends.
    Mr. Leopold. Yeah.
    Mr. Jordan. And, Ms. Attkisson, is this the first time 
you've testified in front of Congress?
    Ms. Attkisson. I testified on some similar issues on the 
Senate side not long ago, and these are both very much the 
    Mr. Jordan. But--so this--was that this year?
    Ms. Attkisson. Yes, sir.
    Mr. Jordan. Okay. So never before----
    Ms. Attkisson. No, sir.
    Mr. Jordan. --the present? Okay.
    Mr. McCraw, first time you've testified?
    Mr. McCraw. It is.
    Mr. Jordan. And you've been in journalism a year or two? 
    Mr. McCraw. That is so.
    Mr. Jordan. You look young. I'm not saying--insinuating 
that. I understand.
    Ms. Goodman, you referenced----
    Mr. McCraw. Thank you for putting that on the record.
    Mr. Jordan. --that in your testimony?
    Mr. McCraw. Sir, could I just address the question, 
    Mr. Jordan. Sure.
    Mr. McCraw. --that you raised? I don't think it's gotten 
worse. I remember very well what it was like when I started 
doing this regularly----
    Mr. Jordan. But, still, the first you've been willing to 
come talk about it.
    Mr. McCraw. First time I've been asked.
    Mr. Jordan. Okay.
    Ms. Goodman?
    Ms. Goodman. Yes.
    Mr. Jordan. First time.
    Mr. Anderson?
    Mr. Anderson. No. I've been before Congress----
    Mr. Jordan. On this issue?
    Mr. Anderson. --Senate committee, which was discussing the 
use of journalistic cover by the CIA and was holding----
    Mr. Jordan. But it's the first time you've testified on 
    Mr. Anderson. Yes, sir.
    Mr. Jordan. Okay.
    I mean, that should--this is sort of where Mr. Mulvaney was 
earlier--that should tell us something. When the press has to 
come testify about restrictions on the press, that's pretty 
important. I mean, that's why this is sort of unprecedented 
that you're all here.
    And I think, Ms. Goodman, I didn't catch most people's 
opening statement, but I caught part of yours.
    So it brings us back to the fundamental question: Why? Why 
has it gotten worse? Why is it to a point where you think you 
now--why are we at this point? What's causing the delays, the 
exemptions, the redactions? What ultimately compelled you all 
to come here? What's the cause of it all?
    Mr. Leopold, can you give me an answer to that? Because 
I've got an idea and I'll be happy to give it, but I'd rather 
hear what you all say here, at least first.
    Mr. Leopold. I came to Congress--or came here today because 
I was asked to testify. I think this is a really important 
issue. I use FOIA aggressively. The public benefits when----
    Mr. Jordan. No, no, no, not, not--you misunderstood me. I 
want to go back to the question of why you're having the--why 
is the problem getting worse, why are the redactions so much, 
why are the exceptions so much----
    Mr. Leopold. Yes, I was----
    Mr. Jordan. --the deliberative process.
    Mr. Leopold. I was just answering----
    Mr. Jordan. Go ahead.
    Mr. Leopold. --the last part of your question.
    I mean, why are they getting worse? I don't know. As I 
indicated, I filed for processing notes, and that gives me 
insight as to how these agencies handle FOIA requests, what 
goes on behind the scenes. What I see is an increasing use of 
exemptions to withhold information that the government may 
    Mr. Jordan. Well, let me go right--I've got a minute. 
Sorry. Let me go right to this.
    Mr. Leopold. Okay.
    Mr. Jordan. And I'll stick with you, Mr. Leopold.
    Has it increased under the Obama administration? Has it 
increased since we got this--this--the email, the letter that 
Mr. Craig, the White House Counsel, wrote to all of the general 
counsels at the respective agencies in the Federal Government?
    Mr. Leopold. I would say, my experience, it has increased. 
Let me just add----
    Mr. Jordan. I would think it would----
    Mr. Leopold. --the difference between this administration 
and the last administration is that this administration signed 
an executive order promising a new era of transparency and open 
    Mr. Jordan. And it's----
    Mr. Leopold. During the Bush years, I knew I wasn't getting 
    Mr. Jordan. Yeah. But that's not my question. That may be 
    Mr. Leopold. That--that--I just want to make that 
    Mr. Jordan. --but I want to go back to what you said 
earlier. You said it's gotten worse.
    Mr. Leopold. I believe it has gotten worse over the years--
    Mr. Jordan. It's gotten worse since April 15, tax day, 
2009, the first year of Obama's presidency, right, since this 
went out?
    Mr. Leopold. I've been filing aggressively FOIA requests 
for the past 5 years----
    Mr. Jordan. When the White House Counsel says all document 
requests that may involve documents with White House equities, 
that's everything. I mean, you talk about a chilling impact 
that's going to have on general counsels in Federal agencies. 
When they say all that have any White House interest associated 
with them, that's pretty broad. And, as Mr. Mulvaney pointed 
out, that's a lot broader than the 1988 deal that--whoever was 
counsel when President Reagan was President. That would scare 
    To me, this is as obvious as it gets. The White House 
General Counsel tells all the general counsels at every 
respective--at every Federal agency, ``Hey, hey, hey, before 
you send anything, check with us,'' of course they are going to 
redact everything. They're scared to death. I mean, we talk 
about the chilling effect in government all the time. It 
doesn't get any more chilling than that if you're a bureaucrat 
in the Federal agencies trying to comply with all your 
    And it's that reason that made it so bad that, for the 
first time in all your careers, you said, you know what, I'm 
going to go talk about--the press has to testify because of 
these restrictions placed on the press. That is huge.
    Mr. Leopold. You can be sure that I'll be FOIA'ing that to 
find out what's going on behind the scenes.
    Mr. Jordan. I appreciate it.
    Thank you, Mr. Chairman.
    Chairman Chaffetz. I thank the gentleman.
    And I think we've allowed each member to ask their 
questions. We have a second panel. And so we, first and 
foremost, want to thank this panel for your time and your 
expertise and your candidness in sharing your perspective. We 
thank you again for your participation here.
    The committee is going to recess for about 4 minutes while 
we reset the table and get ready for our second panel.
    But thank you again.
    We stand in recess for about 4 minutes.
    Chairman Chaffetz. The committee will come to order. We 
have a second panel in our discussion today about FOIA. Let me 
introduce the second panel, then we'll swear you in and begin 
your testimony.
    Tom Fitton is the president of Judicial Watch, the public 
interest group that investigates and prosecutes government 
corruption. As president of Judicial Watch since 1998 with 
nearly 25 years experience in public policy, Mr. Fitton has 
helped turn Judicial Watch into one of America's largest and 
most effective government watchdog organizations. Mr. Fitton is 
the author of the New York Times bestseller ``The Corruption 
Chronicles'' and the executive producer of a documentary movie, 
``District of Corruption.''
    In 2015, the American Conservative Union, the ACU, awarded 
Fitton with the Defender of the Constitution award during its 
annual Conservative Political Action Conference, also known as 
    Cleta Mitchell is a partner and political law attorney in 
the Washington, D.C., office of Foley Lardner LLP and a member 
of the firm's political law practice. With more than 40 years 
of experience in law, politics, and public policy, Ms. Mitchell 
advises nonprofit issue organizations, corporations, 
candidates, campaigns, and individuals on state and Federal 
campaign finance law, election law, and compliance issues 
related to lobbying, ethics, and financial disclosures.
    She practices before the Federal Election Commission, the 
Ethics Committees of the United States House and Senate, and 
similar state and local enforcement bodies and agencies. She 
has served as legal counsel of the National Republican 
Senatorial Committee and the National Republican Congressional 
    Nate Jones is the director of the Freedom of Information 
Act Project for the National Security Archive. He oversees 
thousands of Freedom of Information Act, or FOIA, and mandatory 
declassification reviews, also known as MDRs, requests, and the 
hundreds of FOIA and MDR appeals that the Archive submits each 
    An active member of the American Society of Access 
Professionals, the professional association of government FOIA 
officers, he acts as the liaison between the Archive analysts 
and agency FOIA officers and serves as the Archive's FOIA 
counselor to the public. He's the editor of the Archive's blog 
Unredacted, where we writes about newly declassified documents 
and FOIA policy.
    He has authored the Archive's past five government-wide 
FOIA audits, including the 2015 eFOIA audit, ``Most Agencies 
Falling Short on Mandate for Online Records.''
    Ms. Garcia, Lisette Garcia, is the founder of the FOIA 
Resource Center. Founded in 2013, the FOIA Resource Center's 
mission is to put the most salient public records of the day 
quickly and cost effectively in the hands of the most 
immediately impacted.
    Ms. Garcia is celebrating the first anniversary of her 
firm, where she works to wrest government documents from a 
reluctant bureaucracy using the Freedom of Information Act. Her 
clients are often lawmakers, trade groups, journalists, whose 
ranks once included her. She moved to Washington to attend 
Howard University School of Law and graduated in 2008.
    Gabe Rottman is the legislative counsel and policy advisor 
in the Washington Legislative Office of the American Civil 
Liberties Union, often referred to as the ACLU. He advocates in 
Congress and the Federal agencies on an array of issues in the 
intersection of technology and civil liberties, including 
privacy, cybersecurity, free expression, telecommunications and 
Internet policy, government transparency, as well as 
intellectual property.
    Mr. Rottman practiced law from 2007 to 2012 at Simpson 
Thatcher & Bartlett LLP in Washington, D.C., with a focus on 
antitrust and foreign investment review. From 2001 to 2005 he 
worked in the ACLU's Washington Legislative Office as a 
communication staffer and senior writer.
    And finally we have Anne Weismann, who's the executive 
director for the Campaign for Accountability, a new nonprofit 
that uses research, litigation, and communication to expose 
misconduct and malfeasance in public life.
    She served for 10 years as the chief counsel for the 
Citizens for Responsibility and Ethics in Washington. She 
worked for the Federal Communications Commission as the deputy 
chief of the Enforcement Bureau. She also worked for the 
Department of Justice as the assistant branch director, where 
she supervised government information litigation, including 
    We appreciate you all being here today. We've had a good, 
robust discussion with our first panel, and we welcome you to 
this discussion as well.
    Pursuant to committee rules, all witnesses are to be sworn 
before they testify. If you would please rise and raise your 
right hand.
    Do you solemnly swear or affirm that you will tell the 
truth, the whole truth, and nothing but the truth?
    Let the record reflect that all witnesses answered in the 
affirmative. And as they now take their seats, I would 
encourage you, in order to allow time for discussion, to please 
limit your testimony to 5 minutes as best you can. Your entire 
written statement will be entered into the record. And as 
members have votes coming up on the floor, there may be 
submissions from Congress that we would appreciate if you would 
follow back up on.
    Chairman Chaffetz. But with that, we will start with our 
first witness, Mr. Fitton of Judicial Watch.
    And we thank you, sir, for being here, and we now recognize 
you for 5 minutes.

                       WITNESS STATEMENTS

                    STATEMENT OF TOM FITTON

    Mr. Fitton. Thank you, Mr. Chairman, for allowing me to 
testify on behalf of Judicial Watch.
    Transparency is an important issue to the American people. 
We're a conservative group, but we are nonpartisan, and we have 
over 360,000 active supporters. And there are few more widely 
supported groups in the country than Judicial Watch.
    And, obviously, our focus is on the Freedom of Information 
Act. We're the most active requester, most active litigator 
without a doubt today, and we've used the open records laws to 
root out corruption in the Clinton administration and to take 
on the Bush administration's penchant for improper secrecy. You 
may recall we sued the administration of President Bush all the 
way up to the Supreme Court over the Cheney Energy Task Force.
    We've been around for 21 years, but I can tell you our 
government is bigger than ever, and it's, frankly, the most 
secretive in recent history. President Obama promised the most 
transparent administration in history, but Federal agencies are 
often black holes in terms of disclosure.
    We have filed nearly 3,000 Freedom of Information Act 
requests with the Obama administration, and our staff attorneys 
have been forced to file around 225 lawsuits in Federal court 
against this administration. Overwhelmingly, these lawsuits are 
just designed to get a yes or no answer from the 
    Administratively, agencies have built additional hurdles 
and stonewalled even the most basic FOIA requests. The Obama 
administration's casual law breaking, and it is law breaking, 
when it comes to FOIA is a national disgrace and shows contempt 
for the American people's right to know what their government 
is doing.
    Thomas Jefferson, the Founding Fathers all thought 
transparency was important. Jefferson said if we are to guard 
against ignorance and remain free it is the responsibility of 
every American to be informed. And FOIA increasingly is not 
working in that regard.
    Transparency is about self-government. If we don't know 
what the government is doing, how is that self-government? 
Frankly, how is it even a republic?
    Now, we have this transparency crisis here in Washington, 
D.C. The government's doing more than ever, but is even less 
transparent. Never in our history has so much money been spent 
with so little accountability. Frankly, all of Congress should 
focus on government reform and oversight instead of assigning 
it to just one or two committees.
    Americans are rightly worried that they're losing their 
country. We have the forms of democracy--elections, campaigns, 
votes, political fundraising, ads--but when Congress authorizes 
a trillion-and-a-half dollars in spending after just 3 days of 
debate and when the executive branch won't tell you much unless 
you're willing to make a Federal court case out of an issue, 
frankly, that isn't democracy and it certainly isn't self-
    Mr. Fitton. But FOIA shows that there is a way forward out 
of this transparency crisis. And it's a corruption crisis, as 
well. We've shown that one citizen group, using the FOIA, an 
independent oversight, can help the American people bring their 
government back down to earth and under control. And Judicial 
Watch obviously has succeeded in uncovering documents that have 
been denied to Congress.
    On Benghazi, it's been over a little over a year since 
Judicial Watch uncovered a declassified email showing that 
then-White House Deputy Strategic Communications Advisor Ben 
Rhodes and other Obama administration officials, not 
intelligence officials, put out the talking points used by 
Susan Rice that--the big lie, that the Benghazi attack was 
rooted in Internet video and not a failure of policy. Now 
there's a select committee because of those disclosures. The 
select committee, to put it charitably, doesn't seem to be 
getting much of anywhere, and Judicial Watch's litigation 
continues to be the go-to place for information about what's 
going on in the Benghazi scandal.
    The IRS scandal. Judicial Watch litigation forced the 
agency to admit that Lois Lerner's emails were supposedly lost, 
and it was Judicial Watch's litigation that forced the IRS to 
admit that her emails were not actually lost.
    And only Judicial Watch uncovered the troubling revelation 
that the Obama, IRS, and Justice Department were collaborating 
on prosecuting the same groups that the IRS had lawlessly 
    We're still getting screwed around by the IRS. We just 
filed today a filing that the IRS--updating the court on the 
IRS' machinations with Lois Lerner's lost emails. They told us 
there were no tapes. It turns out there were tapes. They made 
us go through all sorts of hoops to figure out where the lost 
emails might be. They made the court go through all sorts of 
hoops. And then it turns out that the Treasury Inspector 
General had this information and had these tapes. They had 
turned over those tapes 1 day after they'd been requested, the 
IRS to TIGTA. They didn't tell us that. And they made us go 
through this fight with them over where these lost emails would 
be. They knew where they were.
    And then, once TIGTA found the emails that were lost, IRS 
said, ``Well, they're not subject to FOIA. They're TIGTA's 
records, not the IRS' records.'' Then, a few weeks ago, they 
said, ``Oh, we've got some emails from TIGTA, so now they're 
our records, and we'll get to them when we get to them.'' 
Really outrageous conduct.
    And then, of course, we have the most egregious violation 
of Federal transparency law since FOIA was passed 50 years ago, 
and that is Mrs. Clinton's use of a secret email account to 
avoid disclosure under the Federal Records Act, to avoid 
disclosure under FOIA. And when you have the State Department 
agency tell Judicial Watch they looked for records and they 
couldn't find anything and groups like Judicial Watch end their 
lawsuits based on no records being found, that was a lie. They 
didn't look for the records.
    Mrs. Clinton was head of the agency, and she had a legal 
responsibility to maintain those records. And there is criminal 
liability already for failure to maintain those records. It's 
called concealment. You can't conceal records. You can't take 
them away if they're Federal records, and that was what Mrs. 
Clinton did. And there is a longstanding law that prohibits 
that, and, certainly, in the least, that should be subject to 
criminal investigation independently.
    And I'll just finally close. Obviously, Congress is not 
subject to FOIA. It ought to be. The courts aren't subject to 
FOIA. They ought to be. But the problem is the executive branch 
is avoiding FOIA. FOIA reform is important, and we support 
serious, impactful legislation. And we encourage you to keep on 
working on that, and we'll work with you as appropriate.
    Thank you for your time.
    [prepared statement of Mr. Fitton follows:]
    Chairman Chaffetz. I thank the gentleman.
    Ms. Mitchell, you are now recognized for 5 minutes.


    Ms. Mitchell. Thank you, Mr. Chairman, members of the 
committee. Thank you for having a hearing on this really 
important topic.
    I have in my testimony explained my experiences with FOIA 
with a number of my clients over the past several years, 
nonprofit grassroots citizen groups. I want to focus today on 
just one of those experiences, and that is with the IRS and 
Treasury on behalf of the Tea Party Patriots.
    When the IRS and Treasury issued its 501(c)(4) regulations 
which would restrict and allow the IRS to govern free speech 
and political activities of 501(c)(4) organizations, 
regulations that were developed in secret, that were not 
included on the plan for rulemaking that all Federal agencies 
are supposed to publish regularly, and were released the day 
after Thanksgiving, on Black Friday, November 2013, we wanted 
information about where do these regulations come from, what 
were they about, how were they developed. So, on behalf of Tea 
Party Patriots, in early December 2013, we filed FOIA requests 
with the IRS and Treasury seeking information and the documents 
related to the development of the regulations.
    The Department of Treasury wrote back and said, ``We're 
going to invoke our 15-day automatic extension.'' And that was 
all we ever heard from the Treasury Department until we sued 
    The IRS wrote back and said, ``We're invoking our 15-day 
extension, but we're not going to be able to answer within the 
statutory period. We'll answer your FOIA requests April the 7th 
of 2014.'' April the 7th, I get a letter saying, ``We're not 
going to be able to answer your FOIA request as we promised. 
You'll need to give us until July the 2nd.''
    So I called the woman who sent the letter and said, ``Tell 
me what the progress is, how are we doing,'' at which point she 
said, ``Well, you know, I process the request, and I send them 
to the appropriate people within the agency, and then I don't 
ever hear anything back.'' I said, ``You've never heard 
anything back?'' She said, ``No.'' I said, ``Well, how did you 
come up with these dates?'' She said, ``Well, I was 
estimating.'' I said, ``So you made them up.'' She said, 
    So, 1 week later, we filed a lawsuit in Federal court here 
in D.C., a FOIA appeal. And we reached an agreement with the 
Department of Justice where they would provide monthly rolling 
productions from the IRS and Treasury.
    And I have brought the binders with me, if you would like 
to see them. And this is the most recent--these are the most 
recent production, which I got yesterday--day before yesterday. 
It is page--you can't see it--page after page of documents that 
are either totally or partially redacted.
    This, ladies and gentlemen, this is the deliberative 
process privilege in action. We have not received one 
substantive document in all of these binders. We have 
received--we finally--we did agree with the Justice Department 
that they would produce a Vaughn index, which is like a 
privilege log. So we do have a list of thousands of pages of 
documents they haven't produced at all. And the pages they have 
produced are either totally blacked out or partially blacked 
out such that all significant information is removed.
    So what we have really, effectively, learned is that the 
deliberative process privilege has completely subverted and 
destroyed the purpose of FOIA. And the Tea Party Patriots have 
spent tens of thousands of dollars just to try to understand 
regulations--which were withdrawn, so I have a question as to 
why the deliberative process privilege would still apply to 
regulations that have been withdrawn. But we now know they're 
still working on reviewing them. But we're asking about the 
last set.
    But the point is this: We have spent--my client has spent 
tens of thousands of dollars, we've spent many, many hours 
trying to get information to which we are entitled, and all 
we've gotten are these binders full of redacted documents.
    And so I have this to say, which is that FOIA is completely 
broken. What has happened is the courts and the agencies have 
rendered it essentially meaningless. And so I have three 
    Number one, this legislation that is pending in the House 
and the companion bill in the Senate needs to have one 
provision added. Congress should eliminate the deliberative 
process privilege. It is the deliberations of the agencies and 
the process by which the decisions are made that the people 
have a right to know about. That's the basic information that 
we seek. And so Congress should eliminate by statute, just X 
out the deliberative process privilege.
    And, number two, I also recommend that there have to be 
penalties that are imposed for individual government employees 
and agency heads who fail to comply with FOIA.
    And, number three, Congress should take all of the money--
I've heard the conversation about, well, you know, we've cut 
their budgets and all. Let me tell you, this took a lot of 
extra work. It would've been a lot less expensive for the IRS 
and Treasury to just copy the documents and send them to us, 
but going through and redacting takes a lot of extra processing 
    But I would say this: Congress should go through every 
Federal agency and take the money that is now spent, the tens 
of millions of dollars now being spent for the public affairs 
offices, who put out press releases, who tell us propaganda, 
whether it's true or not, that they want us to know, and 
reallocate all of those funds to FOIA processing.
    And then I think Congress should keep a scorecard and 
should know how agencies are doing in terms of responding to 
FOIA and should take that into account at appropriations time.
    So I would say this: Only Congress can fix FOIA. Nobody 
else can fix it. Congress needs to revive FOIA, to bring life 
back into the system, and to make it the transparency act that 
it was intended to be almost 50 years ago.
    Thank you for this opportunity to testify.
    [Prepared statement of Ms. Mitchell follows:]

    Chairman Chaffetz. Thank you.
    Mr. Jones, you're now recognized for 5 minutes.

                    STATEMENT OF NATE JONES

    Mr. Jones. Mr. Chairman, distinguished members of the 
committee, thank you very much for this opportunity.
    At the National Security Archive, we have filed more than 
50,000 FOIA requests, conducted 14 government-wide FOIA audits 
that have displayed the inner workings, or nonworkings, of over 
250 FOIA shops. Our White House email lawsuits against every 
President from Reagan to Obama have saved hundreds of millions 
of messages and set a standard for digital preservation that 
the rest of government has not yet achieved.
    The key point I'd like to convey to you today is that the 
tremendous promise of the Freedom of Information Act, a tool 
that citizens can use to efficiently and effectively gain 
access to records produced by the government, has not been 
fulfilled. Unlike some in the previous panels or others, I 
wouldn't say it's broken. One need only look to the National 
Security Archive's Web site and see the millions of pages of 
documents we've got declassified that have rewritten history 
and helped write policy, or look at Jason Leopold's scoops. But 
the act has certainly not fulfilled its promise.
    So today I'd like to present three of the largest barriers 
to FOIA requesters and how I believe the committee's 
legislation--thank you for already passing--will already help 
these barriers.
    But before I begin on barriers, I have to note that there 
actually are dozens of exemplary FOIA agencies and hundreds of 
star FOIA professionals who really do have transparency in 
their bones and placed the requirements of the FOIA above 
bureaucratic concerns and fear of government--and fear of 
embarrassment. Excuse me. To these agencies and FOIA 
specialists, thank you. I guess, in this case, the reward for 
competence is inconspicuousness.
    But back to barriers. The first negative interaction a FOIA 
requester experiences with an agency is over fees, because many 
agencies have adopted a strategy of using the specter of high 
FOIA fees to deter people from making legitimate requests.
    This practice is fiscally unnecessary--FOIA fees cover just 
less than 1 percent of the cost of implementing FOIA--and it's 
also often legal. The 2007 FOIA amendments make it very clear 
that anytime an agency misses its FOIA deadline it can't charge 
most FOIA fees. But many agencies, with the very troubling 
support of Department of Justice, have improperly skirted the 
crystal-clear intent of these provisions so they can use 
sticker shock to head off requests without processing them.
    Fortunately, both FOIA bills include language which should 
prohibit these high jinks once and for all.
    The second barrier: an improper withholding of information. 
This Sunshine Week, White House spokesperson Josh Earnest 
repeated a Department of Justice talking point touting a 91-
percent FOIA release rate, but this figure is extremely 
misleading. DOJ numbers ignore 9 of the 11 reasons FOIA 
requests are denied. The actual FOIA release rate is just over 
50 percent.
    And many of those partial releases--you see them right 
here. Reams and reams of wholly blacked-out pages are 
classified as partial and go into the DOJ's figure as such.
    More startling, the AP's recent finding that, when 
challenged, government agencies admit they wrongly withhold 
information almost a third of the time.
    As this committee well knows, the most oft-abused exemption 
is Exemption 5, the go-to exemption that agencies use to 
withhold embarrassing, incriminating, or even burdensome-to-
process documents. Happy to talk more about that later. But I 
do laud both of the (b)(5) fixes in the bill. They are very 
    The third barrier: the inability for agencies to leverage 
technology to improve FOIA and recordkeeping procedures. 
Because of this, your bill's language instructing agencies to 
make information public to the greatest extent possible through 
modern technology is very welcome.
    FOIA shops are far behind the private sector utilizing e-
discovery and automated front-end redaction tools to process 
requests, and they are also far behind making their releases 
digitally available to the world. Just 40 percent of the 
agencies follow the intent of the 1996 E-FOIA amendments by 
routinely posting documents online as they're released.
    Now, the good news is there are some good examples. The 
FOIAonline agencies post documents as a matter of practice. And 
the Department of State, for all of its other FOIA and 
recordkeeping problems, does have the best online FOIA reading 
room that posts all of its releases online.
    Email. Today, right now, Federal agencies are still not 
required to digitally preserve their emails. The deadline is 
not until December 2016. Until then, Federal employees will 
continue to be allowed to select themselves which emails they 
believe to be Federal records, print them out, and file them in 
a box. As long as this practice is allowed to continue, it's 
unrealistic to expect that any Federal agency will properly 
search emails in response to FOIAs or that their email 
preservation rate will be any better than the State 
Department's .006 percent department-wide.
    The final overarching point I'd like to make is that the 
root cause of these problems that you've heard today is a lack 
of an independent, robust organization that monitors and 
enforces FOIA compliance throughout the Federal Government, a 
FOIA beat cop.
    The current process of encouraging agency compliance--
that's what the DOJ does--at the same time it defends agency 
withholdings and abuses and reviewing agency compliance--that's 
what OGIS does--after it gets OMB approval to review are 
clearly not establishing agency compliance with the FOIA. My 
fear is that, without robust enforcement, your excellent bill 
won't fix the root cause of the problem.
    Thank you very much for this hearing. Thank you for passing 
the excellent bill out of committee.
    [prepared statement of Mr. Jones follows:]
    Chairman Chaffetz. Thank you, Mr. Jones.
    Ms. Garcia, you're now recognized for 5 minutes.


    Ms. Garcia. Mr. Chairman, thank you so much for having me.
    Actually, we're coming up on our second anniversary, and 
you're welcome to join us at our rooftop party.
    In the meantime, my written remarks and planned remarks 
have already been submitted for the record, so I thought I 
might take the time allotted to me to address some other issues 
already raised by the committee, if that's possible.
    Mr. Chairman, you did an excellent job of laying out the 
land of FOIA. There are a lot of--an article went out last 
night that's going viral right now inviting 25-year-olds to 
come and watch how their government works. They are learning 
for the first time that they're entitled to public records 
under the law. It's, like, crazy. So I definitely appreciate 
you laying out the, sort of, parameters of the law.
    One thing I would clarify is that, of the nine exemptions 
that are listed in the FOIA statute, only six of them are 
discretionary. Three of them are exclusions. Three are--you 
know, according to the law, you're not allowed to have these 
records. But six of them are discretionary, which means that 
agencies are not compelled to conceal those records. They 
actually have some judgment and can say, you know what, maybe 
we'd like to keep these back, but, honestly, it wouldn't hurt; 
let's give them out. Right now, the agencies are treating them 
as de facto exclusion, so all nine exemptions are now being 
    To Mr. Cummings' point, the ranking member, I'm afraid I 
would dispute the records, the numbers that are self-reported 
by the agencies. The full-time employee rate, although it's 
gone down, it's been far surpassed by a spike in contractor 
workers replacing government employees. While they shouldn't, 
according to the Federal Acquisition Regulation, be performing 
inherently governmental functions, in many cases they are. I've 
actually requested the records, and even something as small as 
CBP is paying a quarter-million dollars per staffer outside of 
the government employment environment.
    So another thing that's actually causing a spike in 
spending--in requests--Mr. Cummings raised the issue of 
requests spiking under the Obama administration--it's 
actually--I think amnesty is responsible for the spike in 
requests. There is a league of immigration advocates who have 
encouraged all individuals who would like to be approved for 
amnesty to file a FOIA request seeking their record, their 
file, their immigration file, and this is actually singularly 
responsible for that spike in requests.
    To go on to whether agencies are punishing FOIA officers, I 
actually think it's the reverse, sir. It's actually the case 
that the FOIA chief that was in charge at the IRS over the time 
of Lois Lerner delaying release and not knowing where the 
records were, in fact, that person has been promoted and is now 
in charge of withholding Obamacare records over at CMS. And so 
they're actually rewarded for keeping the government secrets 
rather than punished for leaving them out.
    And those are pretty much the issues that I wanted to 
    In my written remarks, I raise the issue of fees also, just 
like Mr. Jones. The idea that the regular American citizen 
cannot file a FOIA request, that you have to be somebody as big 
as the AP or Bloomberg, it's just unacceptable. OGIS right now 
doesn't--it's where records requests actually go to die.
    So, in a sense, I'm like the citizens' OGIS. I don't have a 
big, dramatic story to tell you that I don't get the records, 
because I actually do get the records without going to court. 
And one example is what I got for ProEnglish, where they were 
able to get the records of Obamacare being promoted in 
languages other than English.
    But getting back to OGIS, they've actually been tasked--
their enabling authorization legislation tasks them with 
providing agencies with procedural guidelines so that they can 
actually improve their FOIA requests. Four years later, the 
Government Accountability Office did a report and found that, 
in fact, OGIS wasn't doing that at all. And so, if it hasn't 
done what it was initially established for, I'm not sure why we 
should trust it for more responsibilities.
    And, lastly, with regard to the continued treatment of DOJ 
as the ``FOIA cop'' I think I heard earlier today, in fact, as 
was pointed out by Mr. Silver, DOJ is actually the litigator 
that fights to the death all these FOIA requests. And so I 
think it's quite a conflict of interest for them to position 
themselves as the leader in the FOIA world.
    And, in point of fact, the courts have told them they are 
not. There is no single agency responsible for administration 
of the FOIA under the law, according to the Administrative 
Procedure Act. And so DOJ has positioned itself that way by 
hosting trainings where they teach FOIA officers across the 
Federal agencies how to avoid fulfillment of FOIA requests. So 
it's DOJ that's positioned themselves that way. We continue to 
give them that credit because they bamboozle media, 
unfortunately, into believing that they are the FOIA chiefs, 
and it just sort of becomes a circular process.
    So that those are my remarks. I'm happy to answer any 
questions. Thanks.
    [Prepared statement of Ms. Garcia follows:]
    Chairman Chaffetz. Thank you. Appreciate it.
    Mr. Rottman, you're now recognized for 5 minutes.


    Mr. Rottman. Thank you, Mr. Chairman, Ranking Member 
Cummings, and members of the committee. Thank you for inviting 
the American Civil Liberties Union to testify today on the 
Freedom of Information Act.
    The ACLU believes that the right to know what the 
government is doing in our name is a necessary corollary and 
prerequisite to the exercise of our First Amendment rights to 
freedom of speech, press, assembly, and petition. We simply 
cannot enjoy these rights to the fullest extent of the Framers' 
intent without an informed populace. The Freedom of Information 
Act should be, but often is not, the most important tool in 
guaranteeing this right to know, and we applaud the committee 
for holding this crucial hearing.
    As detailed in our written testimony, we offer a number of 
reforms that could easily and quickly be adopted and that would 
improve the process for users and government agencies alike. 
For instance, Congress could mandate the creation of a 
government-wide portal that would provide users with a one-stop 
shop for the submission of FOIA requests to any agency or 
agencies that would track all requests, and it would allow 
requesters to easily check the status of their requests. 
Congress could require the posting of all released documents 
online in an easily text-searchable format and require agencies 
to store electronic documents, including emails, also in an 
easily searched format.
    Congress should clarify that agencies may not falsely issue 
``no record,'' responses when, in fact, records exist but 
contain sensitive law enforcement material or the existence of 
those records is classified and the records are therefore 
subject to the exclusions of section 552(c). In such cases, 
agencies should not lie, but should simply offer what amounts 
to a Glomar response; that is, they should say: ``We interpret 
all or part of your response as a request for records that, if 
they exist, would not be subject to the disclosure requirements 
of FOIA pursuant to section 552(c), and we will therefore not 
process that portion of your request.''
    Importantly, Congress should resist the creation of new 
exemptions to FOIA, such as that proposed in the Senate's 
cybersecurity information-sharing bill, which is currently 
pending in that chamber. As others have noted, Congress should 
pass the FOIA reform legislation which is currently pending in 
both Chambers, which would create the portals I mentioned above 
and would codify the presumption of disclosure absent 
foreseeable harm, which is currently applicable in the agencies 
through executive directive.
    Congress should also reintroduce from earlier versions of 
the bill a balancing test for Exemption 5, which would allow 
agencies and the courts to order the disclosure of records 
covered by Exemption 5 privileges or the work product doctrine 
if in the public interest. And relatedly, Congress must address 
the growing problem of secret law, which is anathema in a 
participatory democracy and is epitomized in secret court 
opinions permitting, for instance, the wholesale collection of 
telephone metadata under foreign intelligence surveillance laws 
and the Office of Legal Counsel opinions authorizing torture 
and targeted killing.
    The Freedom of Information Act and our open and transparent 
system of democratic government is the ultimate safeguard of 
our essential freedoms. This notion was at the very heart of 
Congressman John Moss' decade-long fight to pass FOIA almost 50 
years ago in 1966. Indeed, on the floor of the House during 
debate over the measure he made that clear. Information about 
government, he said, is as basic to the intellectual diet as 
are proper seasonings to the physical diet.
    Our Constitution recognized this need by guaranteeing free 
speech and a free press. Mr. Speaker, those wise men who wrote 
that document, which was then and is now a most radical 
document, could not have intended to give us an empty right. 
Inherent in the right of free speech and of our free press is 
the right to know. It is our solemn responsibility as 
inheritors of that cause to do all in our power to strengthen 
those rights and to give them meaning. Our actions today in 
this House will do precisely that. And it is in that spirit 
that I thank the committee for holding this essential hearing 
on how to further strengthen those rights through an improved 
Freedom of Information Act.
    Thank you.
    [The statement of Mr. Rottman follows:]
    Chairman Chaffetz. Thank you.
    Ms. Weismann, you are now recognized for 5 minutes.


    Ms. Weismann. Mr. Chairman and members of the committee, I 
have spent many, many years fighting for greater public access 
to records that show the public what our government is doing 
and why. And despite its flaws, I continue to believe the FOIA 
offers the best tool we have for this purpose.
    Like Mr. Jones, I do not agree with some on the earlier 
panel that suggest that the FOIA is broken. That said, however, 
the statute as currently written definitely presents loopholes 
and limitations that opportunistic agencies abuse to circumvent 
its underlying disclosure purpose.
    There are steps this committee and Congress as a whole can 
take to make the FOIA better, and I think they start most 
significantly with passing the FOIA Oversight and 
Implementation Act of 2015, which enjoys rare bipartisan 
support and now, Mr. Chairman, boasts another important 
champion in you.
    The current situation cries out for the kind of meaningful 
and robust reforms in this legislation. We've heard a lot today 
about Exemption 5, and I echo those sentiments, that Exemption 
5 is, I believe, the most abused exemption that is used to 
block public access to a wealth of information. In litigation 
that I brought when I was at CREW against the Department of 
Justice, DOJ went so far as to argue it had no legal obligation 
to produce a single OLC opinion, even those that provide the 
definitive position of the executive branch or a definitive 
statutory interpretation that all agencies must follow.
    Exemption 5 has become the catchall to withhold virtually 
any records agencies fear may result in embarrassment or 
unwanted attention. And the FOIA Act addresses this problem by 
excluding records from Exemption 5 that embody the working law, 
effective policy, or final decision of the agency. I think this 
will avoid the very harm that Congress thought it was 
legislating against, the accretion or development of a body of 
secret law, something that has been widely criticized across 
the political spectrum.
    I also agree with Mr. Rottman too, though, that the bill 
should go further, it should include a provision that was 
introduced last year that would add a balancing test, and 
here's why. While I would certainly support efforts to get rid 
of the deliberative process privilege altogether, I don't think 
that's a very realistic outcome. But in the discovery context, 
if you are a litigant and you want information that the 
government is claiming is deliberative process, you get to 
argue to a court that your need for that information outweighs 
the need of the government to keep it secret. And I believe by 
importing that test into the FOIA, it would provide the public 
and representatives of the public, such as those on this panel 
and the previous panel, to at least be able to make the 
argument that the public need for the information outweighs the 
government's reflexive invocation of the deliberative process 
privilege. So I would urge the committee to go back and 
consider adding in that provision.
    I also agree that by codifying the presumption of openness 
will go a long way. Right now we have what I would call is just 
an aspirational goal and agencies are free ultimately to do 
what they want. I think if we want to have the kind of 
transparency that President Obama committed to, we need that 
    At bottom, I think agencies need to understand that FOIA 
matters, not just as a statutory command, because it serves a 
critical role in preserving and advancing our democratic 
ideals. I have been privileged to meet with many visiting 
dignitaries and government officials from emerging democracies, 
and I am struck again and again by how they express the belief 
that by passing a similar law in their country, that is the 
only way that they will have a guaranteed right to have a 
democratic form of government.
    Sadly, in our country, however, too many agencies have lost 
sight of the importance of this right in our own governance. 
Instead, they view their responsibilities under the FOIA as a 
burden and a distraction from their primary mission. I think 
this Congress through legislation like the FOIA Act needs to 
send a very clear and unmistakable message that FOIA still 
matters and FOIA remains at the core of every agency's central 
    I would be happy to answer any questions that you have. 
Thank you.
    [The statement of Ms. Weismann follows:]
    Chairman Chaffetz. Thank you. I thank you all for your 
comments. And I will recognize myself for 5 minutes.
    There are two issues that I want to deal with, even though 
we have passed the bill out of committee, that I think we need 
to address before we encourage and bring it up to the floor. 
One of those is limiting back the exemptions. What I would like 
you to do as something we would appreciate if you would really 
put some thought and brainpower behind is to get back to this 
committee in about a week's time. You've been looking at FOIA. 
You've spent time with FOIA. You've spent years looking at it. 
How would we reconstitute those nine? Should they be three? 
Should they be two? Maybe it's 18 and they just have to be much 
more specific.
    How would you take that section of FOIA and redo it in such 
a way that there are certain things, there are certain privacy 
things with individuals that have to be, I think we would all 
agree about that. But I do hear this resounding drumbeat that 
says it's being far too used, it's so liberal in its approach 
that you can put everything under there, and then you get what 
Ms. Mitchell here is binders full of redactions. And we deal 
with the same thing in Congress. I mean, even when we issue 
subpoenas, we get information that's so heavily redacted it's 
    So we would appreciate your thoughts and comments in 
writing back on that as we at the staff level in a bipartisan 
way try to redo that.
    Chairman Chaffetz. The other one that I'm struggling with a 
little bit that I need your help and insight, and I appreciate 
some verbal comments, but again give it a little bit of 
thought, is what is the consequence? Because if there are no 
consequences--now part of that can be who pays--but ultimately 
it's the taxpayers that end up paying. Right? No skin off 
somebody's back if you got to pay. But there has got to be some 
degree of consequence for noncompliance and for just running 
out the 20-day clock. They just blow right through that, and 
we're talking about years often for these materials.
    So, Ms. Garcia, I'm going to start with you because I can 
tell you're anxious to talk about that.
    And then, Mr. Fitton, too, if you could jump in here.
    Ms. Garcia. Thanks so much, Mr. Chairman.
    Actually, because I don't take these requests to court, I'm 
probably the most experienced in terms of securing compliance 
without that stick.
    The statute actually does provide for consequences to a 
FOIA officer. That's why every single decision has to be signed 
by an individual. It's often the case that, for instance, State 
Department is getting away with little initials so that you 
can't track down who the person was who made that decision. And 
then, once it goes to court, which I never go to court, and 
they know I don't go to court, but if you went to court, you 
couldn't really pin that back on one person, the statute does 
    The problem is it gets triggered by the judge. The judge 
has to find that there was arbitrary, capricious, or, like, 
just so outlandish. Guess how many times they've ever referred 
something to special counsel? Zero, big goose egg.
    In addition to that, because FOIA cases are decided at the 
litigation level--I know a lot about litigation only because 
that's the way I'm able to avoid it--but the fact is that it's 
a closed set, the FOIA request. So when it comes to a court 
it's not like an unbounded discovery situation typically. You 
could go there, but typically it's just the closed record that 
was before the agency at the time they made their decision and 
their appeal.
    Chairman Chaffetz. Okay. Let me go to Mr. Rottman and then 
Ms. Mitchell and Mr. Fitton. We have to keep going here.
    So, yes, Mr. Rottman.
    Mr. Rottman. So fundamentally one of the primary issues 
that's happening with FOIA today is this question of secret 
law, and it covers a lot of ground. Part of it is this 
deliberative process privilege, which is being used to keep 
what agencies are calling predecisional documents from the 
public, but those documents, for instance, will show internal 
dissent on questions that are of the utmost importance for 
public policy, and they'll actually contain documents that are 
binding on agencies.
    Chairman Chaffetz. Okay. So let me just, because my time is 
expiring and we're going to have votes and we're going to get 
cut short.
    Ms. Mitchell, here consequence. How do you institute 
consequence for noncompliance?
    Ms. Mitchell. Well, Mr. Chairman, I think that we should 
look at some of the States. The State of Florida has imposed 
criminal consequences for failure to abide by the State 
equivalent in Florida of their Freedom of Information Act. And 
there have been people prosecuted, and it has actually had the 
deterrent effect of making agency people realize that if there 
are consequences, they better follow the law.
    Chairman Chaffetz. Okay.
    Mr. Fitton.
    Mr. Fitton. Well, it's difficult to impose consequences on 
decisions that are discretionary. And if a court disagrees, two 
people disagree. But if you eliminate the discretion, it's 
    But where you have this willful withholding of documents 
there already is a law that could put you in jail for 3 years 
for unlawfully and willfully concealing records, and there's no 
limit as to how that could be applied. And of course a change 
in procedure and a change in attitude and approach by the 
agency heads, by the political appointees, that reward 
disclosure and punish the arbitrary or broad exemptions that 
are used where everything is withheld because it's deliberative 
process as opposed to a more careful analysis.
    Chairman Chaffetz. Thank you.
    I would like, all of you, to give you a chance to respond, 
but I'm a minute past my time here. So we have got other 
members who would like to ask questions.
    I now recognize Mr. Cummings for 5 minutes.
    Mr. Cummings. I want to be effective and efficient. I mean, 
we can go on this merry-go-round forever. And there are clearly 
problems. And we have got a FOIA bill. And I know this may have 
been answered before but I was tied up in a Benghazi meeting, 
so I'm going to ask you what has probably already been asked.
    We're going to sit down and try to improve the bill that we 
have so that we can accomplish something. And in other words, 
to do what the law was intended to do, and that is the FOIA 
law. Give me the elements of what needs to be in that 
legislation. You all are the folks who are the experts.
    And, you know, I keep hearing about the criminal 
consequences. You know, I got to tell you, I lived in a 
neighborhood where people go to prison for stealing a bike. You 
know, then we got people on Wall Street that in some instances 
have been responsible--and banks--for causing millions of 
people to lose money. So, you know, people on my block say: 
What's that about?
    I'm not saying that criminal consequences are not 
appropriate in certain instances. I just wonder when you have 
that, do you really get to the people who are truly responsible 
for what Mr. McCraw called a little earlier the culture.
    So I just want to know from a very practical--sometimes I 
think we in trying to resolve problems, we go all the way 
around the mulberry bush, and we needed to just go straight 
ahead and say: Okay, bip, bip, bip, and this is what we're 
going to do so that we can have transparency, accountability, 
effectiveness, and efficiency. What would we have to have in 
the legislation to accomplish those things?
    Ms. Garcia. I would agree with you, Mr. Cummings, 
overcriminalization is not really the answer. I mean, at some 
point, like if you completely destroy a computer, like a server 
getting wiped, then that reach spoliation to the level of 
criminal acts. But below that, I think that there's a much 
lower threshold. And one of the ideas I would have is to cap 
the funding to the agencies. We talked a lot about raising 
funds. In fact, they should be reduced. There's a lot of slush 
fund money that's going into FOIA. Twenty-five percent of the 
budgets are being directed to defending against FOIAs, and that 
doesn't even include contractors.
    So the same way a prosecutor, you were saying about a 
criminal, a kid who steals a bike, the same way we cap U.S. 
attorney's offices, the amount of money, and they have to 
exercise prosecutorial discretion, who are they going to 
charge, who are they not, we should do that with FOIA. Right 
now it's a limitless fund. DOJ will fight to the death every 
single little ounce.
    Mr. Jones. Mr. Cummings, thank you very much.
    I think, speaking practically, as you said, we have two 
very good FOIA bills that have passed the Senate and passed the 
House last session without becoming law. So I don't think we 
should throw the baby out with the bathwater.
    Mr. Cummings. I didn't say throw the baby out. No, no, no, 
no, no, no, no. You didn't hear me. I said it two or three 
times. I said what do we do to improve it or make it even 
better. One of the things that the chairman has said to me, 
that we would sit down and try to take a look at 653 and try to 
make it even stronger or make it more practical or whatever. 
But I just wanted to know from you all what. I want to start 
with that.
    Mr. Jones. What to improve is to continue to make the 
Office of Government Information Services strong enough so that 
agencies fear it and that it can compel agencies to release 
more information to more people more quickly.
    Ms. Weismann. Mr. Cummings, I have three suggestions that I 
would make. One we have already discussed but you were not 
here, and that is I would revisit the idea of adding a 
balancing test for Exemption 5 deliberative process material 
because I think that is really the only way to level the 
playing field and avoid the kind of abuses we're seeing.
    Two, I would look for more oversight within the executive 
branch, and I would consider using inspectors general. They 
have done some of this work. I think that their obligations 
under the FOIA should be made explicit. And I think this 
committee should consider legislation that would require them 
to report maybe every 2 years back to Congress on how their 
agencies are doing with implementing the FOIA, because I don't 
think either the Department of Justice, which I don't think is 
a fair dealer in this fight, nor the Office of Government 
Information Services, which is really overworked, it can barely 
meet the obligations it currently has, is best situated.
    And I have, three, a very modest but I think practical 
suggestion, which is to require explicitly that every requester 
be given the name, contact information of someone at the agency 
who knows something about their request that they can contact 
and talk to.
    Thank you.
    Mr. Cummings. Ms. Mitchell. And I thank the chairman's 
    Ms. Mitchell. Well, Mr. Cummings, I actually think that, 
after looking at the jurisprudence, the case law on the 
deliberative process, it is unintelligible. It is mind numbing 
to read those cases. And I think that Congress needs to 
eliminate the deliberative process privilege altogether.
    There are two other sections, two other types of privileges 
under the Exemption 5, the attorney work product in 
anticipation of litigation and the attorney-client privilege 
where the counsel to an agency is giving legal advice to the 
agency personnel making decisions. And I really think that that 
is as broad as it should be. I do not believe that Congress 
should give Federal judges who have completely mucked up, 
including the Supreme Court, the whole deliberative process 
privilege. I think it has to be very clear, and you should not 
give them the authority to decide the balancing.
    The presumption is openness. The presumption is deliver the 
documents. And if you read some of these cases where the judges 
have decided, well, is it predecisional, is it deliberative--I 
mean, what does that mean, for Pete's sake? I mean, normal 
people can't understand all that. I don't understand all of 
    It used to be in the common law definition the agency head 
had to sign off before it could be invoked, the deliberative 
process privilege could be invoked. My favorite of the 
deliberative process privilege invoked in the production that I 
brought here today is the withholding of documents written by a 
summer intern as deliberative process, who had gathered 
research and wrote memos, and that's all been redacted and 
withheld, either redacted or withheld, but they won't tell us 
the name because they say this person was not a decisionmaker.
    So these are the kinds of things that the agencies are just 
unilaterally deciding, and I think the only way to deal with it 
is to just get rid of that deliberative process altogether.
    Mr. Cummings. Thank you, Mr. Chairman.
    Mr. Palmer. [Presiding.] The chair now recognizes Mr. 
Jordan from Ohio for 5 minutes.
    Mr. Jordan. I thank the chairman.
    Mr. Fitton, let me go back to where I was with the first 
panel. We had a group of journalists who had never testified 
here before but felt it was important to come talk about this 
issue in front of Congress. I just want to make sure we're all 
clear, and I'll run the same questions by you. In your 
judgment, has the process of trying to get information from 
Federal agencies, has it gotten worse and more difficult to get 
that information?
    Mr. Fitton. Yes.
    Mr. Jordan. Deliberative process exemption has increased 
    Mr. Fitton. Yes.
    Mr. Jordan. And the number of redactions when do you get 
the stuff after taking forever, you got a whole bunch more 
redactions on the material?
    Mr. Fitton. Yes.
    Mr. Jordan. And other exemptions that you may see as well?
    Mr. Fitton. Yes.
    Mr. Jordan. Okay. So much so that the first panel--I mean, 
I still think this is amazing, that none of them had ever 
testified on this issue before, but yet the press has to come 
testify about restrictions the press is receiving even though 
we have this thing called the First Amendment. Pretty amazing.
    And I think it's also important to remember the entire 
context. Not only are agencies unwilling to give citizens 
information, but the very same agencies that may not give 
information under a legitimate FOIA request were also targeting 
citizens for exercising their First Amendment rights, right?
    Mr. Fitton. Right.
    Mr. Jordan. Ms. Mitchell, I know you can talk about that, 
right? I mean, take the IRS, for example. They may not comply 
with certain FOIA requests that you want, but they were also 
not just not complying with giving citizens information they 
had a right to get, they were also targeting potentially those 
same citizens.
    Mr. Fitton. We represented, worked with Wayne Allyn Root, 
who was a vice presidential candidate for the Libertarian 
Party, but he had been audited under suspicious circumstances. 
It took us a year to get this man's one IRS file. And we didn't 
go to court over it. But to just get your own file shouldn't 
take a year from an agency such as the IRS.
    Mr. Jordan. All I'm trying to do is sometimes we get 
focused, okay, agencies are dragging their feet, they're doing 
more redactions, more exemptions. We got to remember the big 
picture. These same agencies have targeted citizens.
    Mr. Fitton. Right.
    Mr. Jordan. So these same agencies have behaved so poorly 
that the press for the first time ever has to come testify 
about restrictions the press is getting. I mean, it's 
unprecedented where we're at.
    So I would to the chairman say we have got to understand 
the entire context here of what's going on.
    Mr. Fitton. It's catch me if you can government. And the 
agencies don't like to turn over documents, and unless you're 
represented in court, it is unlikely you're going to get a 
substantive response from the government unless you're willing 
to wait years and months, which is outside what the law 
    Mr. Jordan. No. Judicial Watch has proven that. The only 
way you're going to get stuff, almost the only way, is to go to 
court. We get that.
    I want to ask all of you, have you seen a marked increase 
in all the things we're talking about since this administration 
took office?
    Mr. Fitton.
    Mr. Fitton. Yes, we have had a dramatic increase in 
government spending and activity and less transparency.
    Mr. Jordan. Ms. Mitchell.
    Ms. Mitchell. Well, Mr. Jordan, actually I hadn't been 
involved in FOIA until I started dealing with clients who had 
been targeted. So we began to try to get information from 
Federal agencies, not the IRS but others, and submitted FOIA 
requests to find out, to try to get to the bottom of the 
targeting. And I include some documentation in my testimony 
about some of my clients and our efforts to try to get 
    Mr. Jordan. Ms. Mitchell, let me ask you a question. I just 
thought of this. It wasn't in my planned questions. You had 
clients who were targeted, and then you requested, did FOIA 
requests to get information,
    Ms. Mitchell. Correct.
    Mr. Jordan. Did it ever work in reverse? Do you have any 
clients who requested information and because they requested 
information were then in some way harassed by a Federal agency?
    Ms. Mitchell. Well, they had already been harassed.
    Mr. Jordan. I understand the situation. I'm just curious, 
maybe we don't know, but this is something I'm kind of 
interested in finding out, if it's ever worked the other way 
around. Someone is asking for information, and because of that 
request they suddenly become a target of harassment from an 
    Mr. Fitton. Well, the IRS told us when they audited us 
during the Clinton years: What do you expect when you sue the 
President? You're going to scrutinize the government, the 
government is going to scrutinize you.
    Mr. Jordan. I got 30 seconds left, so I want to go to the 
memo. I mean, I read this memo that the White House Counsel 
sent to all the general counsels of the various Federal 
agencies, if this, as I said to the first panel, if this isn't 
a chilling impact on what we're talking about, I don't know 
what is. When they should, every agency should consult with the 
White House Counsel's Office on all documents, all documents, 
that may involve documents with White House equities.
    Any interest the White House may have, that's as broad as 
you can get. And then they further go down here. They list GAO 
requests, judicial subpoenas, FOIA requests. They list 
everything you can imagine. I've never seen anything like that.
    Ms. Garcia. Mr. Jordan, more dramatic than that, weeks 
after the President issued that directive saying that agencies 
should err on the side of transparency and openness, he was 
awarded an award by the transparency community, not including 
me, on the promise of his future transparency, sort of like the 
Nobel Prize. And in point of fact, he closed it to the press. 
So the actual receipt of the award was not open to the media. 
If that doesn't send a chilling statement, I don't know what 
    Mr. Jordan. I thank you all.
    Thank you, Mr. Chairman.
    Mr. Palmer. The chair now recognizes Mr. Lynch from 
Massachusetts for 5 minutes.
    Mr. Lynch. Thank you, Mr. Chairman.
    Thank you all for your help.
    I just want to point out one contrast here. Up until about 
an hour ago when the USA Freedom Act passed, the government in 
getting information about the general public was unfettered, 
warrantless gathering of information of the public. And even 
when they had to go to the FISA court we could find no examples 
of the FISA court ever denying a warrant for the government to 
gather metadata regarding its citizens.
    So here you have the government with absolute discretion on 
gathering information about private citizens, and yet when 
private citizens try to understand a little bit about what the 
government is doing, it's a roadblock, complete roadblock.
    I would like to talk about something that a couple of the 
panelists have brought up about the inspector general, the way 
we have inspector generals in each department. And they do a 
pretty good job. I have to say I'm pretty pleased with the way 
they do their job. But they are also sometimes denied access to 
information or given the runaround like you all are on a 
regular basis.
    So the problem is this weighing, this balancing and 
determining whether some information lies within one of the 
exemptions or should be protected. And you all have to go to 
court to have that figured out, and it's a very long process, 
for most of you, most of you.
    Would it be helpful if we had an advocate general for 
freedom of information within the IG's office where they could 
in the first instance determine whether or not these people are 
stonewalling and looking at the information and saying: Hey, 
wait a minute, this does not pass muster, this is not part of 
the deliberative process.
    From the previous panel, they were saying how stuff that 
was just--there was no contest that this should have been 
information that was--and even the judges, when it finally went 
to court, the judges said this should have never been denied, 
it should have been responded to, the public should have had 
this information.
    There has got to be some way to short-circuit this and to 
incentivize these agencies to cooperate as FOIA would intend. 
And that could be civil penalties, it could be awarding costs 
or damages to a party that hasn't been dealt with fairly or 
there's been unreasonable obstruction of justice and flow of 
information because of the positions that these departments 
have taken. There's got to be some consequences here. We have 
to induce good behavior, and we're not seeing that right now.
    So would an advocate general or would any of those measures 
help? And, look, I voted for the FOIA bill that we passed here, 
fully supported, but I don't think it addresses every single 
aspect of what you're bringing up here today.
    Mr. Fitton.
    Mr. Fitton. The concern is about these administrative 
agencies. They'll have opinions and it's another layer of 
bureaucracy that may or may not be helpful, and the courts may 
give undue deference to them, and they are still working for 
the agency at issue.
    IGs are interesting creatures. Many IG reports are both 
exposes and coverups at the same time. And I think it's 
notable, I think it's in the new FOIA legislation, that there's 
a mandate that material behind IG investigations be publicized 
as well, or made public, that it currently isn't happening.
    So getting access to the courts and taking away the 
deference, taking away the excuse courts have to give deference 
to the agency discretion on these withholdings, that's what we 
have to work around, because as long as they have that 
discretion it's going to be very difficult to overcome that 
because the courts are going to say: Who am I going to listen 
to, the agencies who know what they're doing? What do you know, 
Judicial Watch, about the damage to the agency's deliberative 
process if I don't release this information? Or they're 
weighing privacy interests.
    During the Bush administration, one of my favorite worst 
examples, was that after 9/11 one of the agencies redacted the 
name of Osama bin Laden to protect his personal privacy. Now, 
we can laugh about it, but it took a lot of time for us to undo 
    Mr. Lynch. Not to cut you off, and I appreciate the 
example, but the inspector generals are swimming in that world. 
They are constantly dealing with that world. So they too have a 
discretion and a certain balance of interest there where 
they're trying to get information for us, and they work with 
this committee especially.
    Mr. Fitton. And they already have an obligation to enforce 
the law, and in theory there is nothing preventing them from 
doing FOIA investigations and oversight----
    Mr. Lynch. I guess I'm trying to short-circuit this process 
that you're all going through very painfully.
    Thank you. I yield back.
    Mr. Palmer. Thank you, Mr. Lynch.
    The chair now recognizes Mr. Carter from Georgia for 5 
    Mr. Carter. Thank you, Mr. Chairman.
    And thank each of you for being here. We appreciate--as if 
you had any other choice--you being here. But we do appreciate 
it very much.
    Ms. Garcia, I'm interested particularly in your role with 
the Resource Center and in your dealings with DHS. I have a 
bill that is before DHS right now, H.R. 1615, dealing with 
FOIA. As you know, DHS has got the largest backlog of any other 
agency in the way of FOIA requests, and I'm very concerned 
about that, and that's what this bill addresses, is that 
backlog, to try to catch us up and try to help us to address 
    But what I want to ask you about is particularly the fees 
that are involved in this. What do you find most problematic, 
is it the high price of the fees or the estimation of what the 
fees are going to be? What's the biggest problem when it comes 
to fees for a FOIA request?
    Ms. Garcia. Well, one of the largest problems, Mr. Carter--
thank you so much for your question--one of the largest 
problems is that the agencies know that most requesters don't 
know the law, so they actually make things up as they go along.
    A lot of contractors are working at DHS, and so what's 
being not shown in the full-time employee numbers that were 
given by Mr. Cummings, the ranking member, is that, in fact, 
there's this whole crew of shadow workers at DHS. They're there 
to kill the FOIAs, not to fulfill them. They will give you a 
phone call and tell you, just as they said in the earlier 
panel, that your FOIA doesn't make sense or that it doesn't 
somehow comply. All of that time is added to the fee that it 
took to process your request.
    On top of this, because the contract regulations don't 
allow contractors to make decisions, then you need a second 
layer where an actual employee rubber stamps the work of the 
other person. Now you've gotten a bill for double the price.
    Mr. Carter. Right. Well, let me ask you, you gave us an 
example where you had requested a $60 fee waiver, and you got 
an eight-page response. Now, I'm not a lawyer, but I read 
through this, and this looks like legal jargon to me. I can 
only imagine how much this cost to assimilate, as opposed to 
just waiving the $60 fee.
    Ms. Garcia. That's exactly right, Mr. Carter. In point of 
fact, the request only amounted to $3, but after they added the 
contractor and the rubber stamper, then it actually resulted in 
a $60 fee, so it was something like a 1,900 percent increase. 
And then someone who gets paid roughly in the neighborhood of 
$225,000 a year took the time to write out, not including 
benefits and perquisites, took the time to write out an eight-
page legal memo like to the nines, like we were going to court.
    So, yes, in fact they add their own. Twenty-five percent of 
these budgets are going to FOIA defense, and that was as much 
as I could adequately honestly compute. It may be more. I would 
say that your bill trying to curb DHS expense in FOIA is very 
welcome, precisely the provision that talks about auditing, as 
long as we don't hire another contractor to perform the audit.
    Mr. Carter. Okay. Let me ask you this. Did they give you an 
estimate of how much it's going to be?
    Ms. Garcia. They do. And there is an interesting procedure 
that's starting to get widespread, like catching like wildfire 
all over the Federal Government, which is they do give you an 
estimate. They say: If you don't give us this money or promise 
to pay this money within 10 days, we will close your request.
    Of course you can appeal this decision, no problem, you 
have 45, 60 days, whatever it is. The problem is once they've 
already killed your request, what incentive does the agency 
have to reverse its original position and then suddenly grant 
you the fee waiver and revive your FOIA request? It doesn't 
    Mr. Carter. Right. Right. Okay.
    Again, in dealing with the fees and when they're coming up 
with these estimates, one thing that bothers me is--obviously 
my bill deals with DHS--but we need a consistent policy 
throughout all the agencies. Is that something that you feel 
like, Ms. Mitchell, is that something that you think would be 
possible? Because it appears to me from what I've heard today, 
not only with this panel but the first panel as well, is that 
it's haphazard among the agencies.
    Ms. Mitchell. It is completely haphazard. And it's 
interesting, but if you submit a FOIA request, the exact same 
FOIA request to multiple agencies, you will get radically 
different levels of response, and some agencies are more 
responsive than others. And the IRS just happens to be one that 
takes the position that they're not going to answer any FOIA 
requests unless you sue them. That's their default position. So 
there is no standard of responsiveness, level of 
responsiveness, how they price things, nothing.
    Mr. Carter. Okay. Well, guys hang in there. We're doing the 
best we can.
    Mr. Chairman, I yield back.
    Mr. Palmer. Thank you, Mr. Carter.
    The chair now recognizes Mr. Hice from Georgia for 5 
    Mr. Hice. Thank you, Mr. Chairman.
    And thank each of you for being here today. Very disturbing 
    Just as a general rule, what would you say is the average 
time it takes to receive a FOIA response? Is there any average 
or any way of determining that.
    Mr. Fitton. If they could, it would be years.
    Mr. Hice. So you're saying average would be years?
    Mr. Fitton. A lawsuit may get you documents in less than a 
    Mr. Hice. Okay.
    Ms. Mitchell.
    Ms. Mitchell. I have so many clients who could paper a room 
with letters from Ms. Higley from the IRS. She generates those 
letters. She's a very nice person. She'll generate these fake 
dates. Every 90 days you get another letter, you get another 
    Mr. Hice. Would you say years?
    Ms. Mitchell. Years. This has been going on years.
    Mr. Hice. Okay.
    Mr. Jones.
    Mr. Jones. Varies agency by agency. The longest National 
Security Archive has is over two decades.
    Mr. Hice. Mercy.
    Ms. Garcia.
    Ms. Garcia. Usually clients before they come to me, it's 2 
to 3 years and a lawsuit.
    Mr. Hice. Okay.
    Mr. Rottman.
    Mr. Rottman. Part of the problem is there's two separate 
averages. So for cases where the documents are politicized it's 
far more than the 20 days. And then for run-of-the-mill cases 
it's less.
    Mr. Hice. Okay.
    Ms. Weismann.
    Ms. Weismann. Months to years.
    Mr. Hice. Okay. So far, far beyond the 20 days. I mean, in 
fact, it is an extreme situation that the law is actually 
    Mr. Fitton, let me go back to you. Do you believe that 
there is an attempt by agencies to actually obstruct? Is the 
word obstruction too strong?
    Mr. Fitton. No, it's not too strong, particularly with the 
IRS and the State Department. That's knowing and willful 
conduct that rises to a criminal level in my view. The general 
counsel of the IRS was there during the IRS attacks on the Tea 
Party, and he's there guiding the document response into that 
very scandal.
    Mr. Hice. All right. So you absolutely used the word 
obstruction is taking place?
    Mr. Fitton. Criminal obstruction.
    Mr. Hice. Criminal obstruction. All right. So would you go 
so far as to say that we are potentially facing a 
constitutional crisis if just, say, FOIA requests are regularly 
denied, we have got some constitutional issues potentially in 
the making?
    Mr. Fitton. Well, not only do you have that vis--vis the 
executive branch and the citizenry, but you have it with the 
interbranch relations as well. So, yes.
    Mr. Hice. Okay. Mr. Fitton, let me go to you. You stated a 
moment ago that were told by an agency official that if you 
scrutinized the government, that the government will scrutinize 
you. I believe that was you.
    Mr. Fitton. Yeah, that was during a discussion about an IRS 
audit. It was an IRS official who told us that.
    Mr. Hice. Okay. Unbelievable. All right. So does that mean 
the IRS considers a FOIA request government scrutiny?
    Mr. Fitton. Oh, for sure, for sure.
    Mr. Hice. All right. So the IRS would look at a FOIA 
request as an attempt by an individual or a group to scrutinize 
the government and therefore they are worthy of retaliation?
    Mr. Fitton. I believe there have been retaliatory audits 
for activities of groups that are opposed to either this 
administration or prior administrations, yes.
    Mr. Hice. All right.
    Well, Ms. Mitchell, let me go to you. I believe then you 
said that you personally got involved in this whole thing 
because of people you are now representing who were scrutinized 
by the government. All right. Specifically or is that IRS? Or 
are there other agencies?
    Ms. Mitchell. It's both.
    Mr. Hice. Both what?
    Ms. Mitchell. I have one client who actually testified 
before a subcommittee of this committee in the last Congress, 
and when she filed applications for exempt status for two Tea 
Party groups, within a very short period of time she was 
visited personally by the IRS. Her business was visited twice 
by the Bureau of Alcohol, Tobacco, and Firearms. Her business 
was suddenly audited by OSHA. The FBI came seven times. I mean, 
this is a woman who had been living her life for quite a long 
time with none of that government interest in her or her 
    Mr. Hice. So connecting the dots is undeniable in your 
    Ms. Mitchell. Certainly seems more of a coincidence.
    Mr. Hice. Okay. If it's not already been stated, could you 
provide that evidence to this committee or has that already 
been submitted?
    Ms. Mitchell. Yes. It has been in the last Congress. I'm 
more than happy to provide it again.
    Mr. Hice. Okay. All right. Thank you for that.
    Ms. Garcia, let me end my time with you. You stated just a 
moment ago that the DHS, I believe you mentioned specifically, 
has the attitude that absolutely their attempt is to avoid 
fulfilling FOIA requests rather than meet those requests. Is 
that right?
    Ms. Garcia. Absolutely. In fact, the DHS FOIA chief said I 
was the Kerry Washington of FOIA, that if somebody needed a 
request, they knew where to get it handled. Who would say that? 
I mean, that's like a scandal. That's like a TV show.
    Mr. Hice. Would you submit that evidence to this committee?
    Ms. Garcia. Absolutely.
    Mr. Hice. Thank you very much.
    And I yield back.
    Mr. Palmer. Thank you, Mr. Hice.
    The chair now recognizes myself for 5 minutes.
    Mr. Fitton, in regard to the memo from the White House that 
Mr. Jordan read in which they directed every executive agency 
to notify them of any requests for information, and in the 
context of your answer to a question Mr. Hice just asked about 
and which you responded that there is criminal obstruction, 
that's pretty strong, I want to know what you would think about 
an agency possibly engaging in an effort to instruct their 
employees on how to work with outside groups to avoid the 
requirements of a FOIA request.
    Mr. Fitton. It certainly would be inappropriate. The 
Justice Department is the locus of evil when it comes to FOIA 
noncompliance. All the agencies get represented by the Justice 
Department, and everything they say and everything they do in 
terms of withholding is almost always supported by the Justice 
Department. I would bring the Attorney General or a 
representative up from Justice and say: Tell us those cases 
that you've turned away.
    Mr. Palmer. Let me share with you some information that I 
shared with the panel earlier from the press. This is the 
written testimony submitted by Mr. David Schnare, former 
employee of the EPA, who testified that the EPA had prepared an 
83-page PowerPoint presentation on how to use electronic tools 
to collaborate with external partners. I'm not going to read 
all of this. But he talked about the use of instant messaging, 
other real-time correspondence tools, even encouraging using 
AOL and Yahoo and asking third parties to set up chat rooms.
    And then here's the part I find particularly troublesome. 
He said this presentation also documents a culture of disregard 
for agency duties under public records and FOIA requirements. 
It characterizes FOIA and the NARA rules as Federal laws that 
constrain Federal administration of public-facing Web 
collaboration tools. Actually here's the PowerPoint from that. 
And listed among those is the NARA, the Federal Advisory 
Committee Act, the Paperwork Reduction Act.
    And then he goes on and says the next section of the 
presentation describes creative solutions to dealing with 
Federal constraints--now, they've already considered these 
requests for documents to be constraints--and openly suggests 
ways to circumvent public records acts. Specifically, EPA 
encourages its employees to help outside parties to sponsor the 
Web-based collaboration tools, noting that as long as we're 
only participants, not administrators of a Web collaboration 
site, the site is not limited by those same FOIA and Public 
Records Act constraints.
    How would you respond to that? How would you characterize 
that, let me say that, put it that way?
    Mr. Fitton. That's a willful avoidance of the law, and the 
criminal law already prevents--there's a criminal sanction for 
willful concealment of documents. And the classification issues 
with a process like that are significant. You could have 
classified records, depending on the agency. And to be creating 
Federal records and not maintaining them in a willful way is a 
criminal violation of law. And this is a dramatic illustration 
of a coordinated effort to avoid transparency laws and 
    Mr. Palmer. So that would perhaps go beyond obstruction.
    Mr. Fitton. Well, I say obstruction when there is a willful 
concealment of records, you're violating the Freedom of 
Information Act, but there are criminal sanctions associated 
with concealing records. And that has got to be a tool that 
prosecutors, you know, they can do a case against the former 
Speaker of the House by interpreting the structuring laws, 
antistructuring laws, maybe they can figure out how to do the 
criminal laws and impose them on the Federal bureaucracy that 
willfully violate FOIA in ways that take away our freedom to 
know what our government's up to.
    Mr. Palmer. Would any of the other panel like to respond to 
    Mr. Jones. I'd add it's very widespread.
    Ms. Garcia. I would also add that LinkedIn is something to 
be looked into. It's probably because the FOIAs are so slow 
that it didn't make it to them. And you talked about Yahoo 
Messenger, something ridiculous like that. But, indeed, 
LinkedIn sold half a million dollars of contracts, and I went 
to a training for government officers, and they were 
specifically told to use their private email accounts to be 
able to communicate with people.
    Mr. Palmer. I would like to thank all of our witnesses for 
taking the time to appear today. If there is no further 
business, without objection, the committee stands adjourned.
    [Whereupon, at 6:02 p.m., the committee was adjourned.]



               Material Submitted for the Hearing Record