[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ENSURING TRANSPARENCY THROUGH THE FREEDOM OF INFORMATION ACT (FOIA)
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HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
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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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
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
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
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
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Page
Hearing held on June 2, 2015..................................... 1
WITNESSES
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
Accountability
Oral Statement............................................... 143
Written Statement............................................ 145
APPENDIX
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
ENSURING TRANSPARENCY THROUGH THE FREEDOM OF INFORMATION ACT
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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
tomorrow.
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
departments.
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
discretion.''
Mr. Chairman, I hope that we can seize this opportunity,
and I hope that--again, I want to thank you for calling this
hearing.
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
members.
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
nations.
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.
STATEMENT OF SHARYL ATTKISSON
Ms. Attkisson. Plenty of time for a journalist that
sometimes had to do stories in 2 minutes on the news
frequently.
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
there.
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:]
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Chairman Chaffetz. Thank you.
Mr. Leopold, you are now recognized.
STATEMENT OF JASON LEOPOLD
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''
memorandum.
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
released.
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
slowly.
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
Member----
Chairman Chaffetz. Make sure that microphone is--there you
go.
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
frustration.
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:]
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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
committee.
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
them.
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
agencies.
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
accountability.
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.
markets.
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
questions.
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
accountability.
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
continue.
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:]
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Chairman Chaffetz. Thank you, Ms. Goodman.
Mr. Anderson, you are now recognized for 5 minutes.
STATEMENT OF TERRY ANDERSON
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
drastically?
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
embarrassment.
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
Washington.
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
desks.
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:]
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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
process.
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
there.
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
better.
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
back.
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
catchalls.
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
correlation?
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
access?
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
otherwise.
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
that.
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
terrorism.
Ms. Norton. And you don't think they could already withhold
that?
Mr. Anderson. No, most of them are not classified in any
way.
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
requests.''
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
equities.
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
communications.''
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
sector.
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
can.
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
requests?
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
committee.
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.
DeSaulnier.
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.
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
are.
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
minutes.
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
committee?
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,
yes.
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
officers.
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
behavior.
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
interpreted.
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
shared?
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
meta-FOIA.
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
ombudsman.
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
process?
Mr. Anderson. Yeah. Absolutely. I----
Mr. Carter. Did you have to do it with all 13 or just a
few----
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
say?
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
process?
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
know----
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.
1615.
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
allowed.
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
period?
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
here.
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
reporting.
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
testimony.
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
well.
I thank the chair for the time, and I thank all of the
panelists for being here today. It's a very illuminating
conversation.
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
overused.
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
first----
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?
Not----
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,
though----
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
FOIA?
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
feel----
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
government.
Mr. Jordan. And it's----
Mr. Leopold. During the Bush years, I knew I wasn't getting
anything.
Mr. Jordan. Yeah. But that's not my question. That may be
true----
Mr. Leopold. That--that--I just want to make that
statement.
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
you.
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
requests.
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.
[Recess.]
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
CPAC.
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
Committee.
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
year.
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
FOIA.
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
administration.
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-
government.
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
suppressed.
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:]
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Chairman Chaffetz. I thank the gentleman.
Ms. Mitchell, you are now recognized for 5 minutes.
STATEMENT OF CLETA MITCHELL
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
them.
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,
``Basically.''
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
recommendations.
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
time.
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:]
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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
good.
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:]
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Chairman Chaffetz. Thank you, Mr. Jones.
Ms. Garcia, you're now recognized for 5 minutes.
STATEMENT OF LISETTE GARCIA
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
withheld.
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
raise.
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:]
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Chairman Chaffetz. Thank you. Appreciate it.
Mr. Rottman, you're now recognized for 5 minutes.
STATEMENT OF GABRIEL ROTTMAN
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:]
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Chairman Chaffetz. Thank you.
Ms. Weismann, you are now recognized for 5 minutes.
STATEMENT OF ANNE WEISMANN
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
codification.
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
mission.
I would be happy to answer any questions that you have.
Thank you.
[The statement of Ms. Weismann follows:]
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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
ridiculous.
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
provide.
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
easier.
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
indulgence.
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
that.
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
dramatically?
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
requires.
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
information.
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
agency.
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
does.
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
it.
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
minutes.
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
it.
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
happen.
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
minutes.
Mr. Hice. Thank you, Mr. Chairman.
And thank each of you for being here today. Very disturbing
information.
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
year.
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
letter.
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
followed.
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
family.
Mr. Hice. So connecting the dots is undeniable in your
opinion.
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
disclosure.
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
that?
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.]
APPENDIX
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