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


 
                   ENSURING GOVERNMENT TRANSPARENCY 
                         THROUGH FOIA REFORM

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                         GOVERNMENT OPERATIONS

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 27, 2015

                               __________

                           Serial No. 114-10

                               __________

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


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                      http://www.house.gov/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
                 Subcommittee on Government Operations

                 MARK MEADOWS, North Carolina, Chairman
JIM JORDAN, Ohio                     GERALD E. CONNOLLY, Virginia, 
TIM WALBERG, Michigan, Vice Chair        Ranking Minority Member
TREY GOWDY, South Carolina           CAROLYN B. MALONEY, New York
THOMAS MASSEY, Kentucky              ELEANOR HOLMES NORTON, District of 
MICK MULVANEY, South Carolina            Columbia
KEN BUCK, Colorado                   WM. LACY CLAY, Missouri
EARL L. ``BUDDY'' CARTER, Georgia    STACEY E. PLASKETT, Virgin Islands
GLENN GROTHMAN, Wisconsin            STEPHEN F. LYNCH, Massachusetts

                  Jeffrey Post, Deputy Staff Director
                          Katy Rother, Counsel
                           Sarah Vance, Clerk
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 27, 2015................................     1

                               WITNESSES

Ms. Miriam Nisbet, Former Director, Office of Government 
  Information Services, National Archives and Records 
  Administration
    Oral Statement...............................................     4
    Written Statement............................................     6
Mr. Frederick J. Sadler, Former FOIA Officer, Food and Drug 
  Administration
    Oral Statement...............................................    11
    Written Statement............................................    14
Mr. Rick Blum, Director, Sunshine in Government Initiative
    Oral Statement...............................................    25
    Written Statement............................................    27


          ENSURING GOVERNMENT TRANSPARENCY THROUGH FOIA REFORM

                              ----------                              


                       Friday, February 27, 2015

                  House of Representatives,
             Subcommittee on Government Operations,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:03 a.m., in 
room 2154, Rayburn House Office Building, Hon. Mark Meadows 
(chairman of the subcommittee) presiding.
    Present: Representatives Meadows, Jordan, Walberg, Massie, 
Mulvaney, Carter, Grothman, Connolly, Maloney, Lynch, and 
Cummings.
    Mr. Meadows. Good morning. The Subcommittee on Government 
Operations will come to order. And, without objection, the 
chair is authorized to declare a recess at any time.
    Transparency is the lifeblood of democracy, and if a 
government is truly of the people, by the people, and for the 
people, the American people need to know what our government is 
doing on their behalf. Transparency also gives our citizens the 
opportunity to make informed decisions, to hold accountable 
those in government that will abuse or perhaps mismanage the 
public resources.
    It is those hardworking American taxpayers that really fund 
everything that we do. And so we need to keep them in mind. And 
this particular hearing is really to examine the Freedom of 
Information Act, the tool that it provides, obviously dating 
back to 1966, when it was originally put in place as a 
foundational transparency law.
    And as we have seen it come into practice, those 
presumptions of allowing Federal records to be accessible to 
the public is a critical component. Americans really have the 
desire and the need to know. They are looking into the age of 
the Internet as we start to see information that is coming out. 
It is critical that that information from our government gets 
placed in the hands of the American taxpayers. Obviously, 
sensitive information is something that we need to protect and 
do that.
    But under this particular law, what we have seen over and 
over again is a lack of compliance, a lack of transparency. 
And, unfortunately, when that happens, a lack of trust follows 
it. And what this is all about is looking at reforms. The 
ranking member and I both agree that, in order to restore 
trust, you have to have that transparency.
    With that said, though, there are over 700,000 requests 
that get made of the Federal Government each and every year. 
And so some of those requests can be very laborious. So what we 
are looking for from our witnesses are to look at how do we 
streamline the process, how do we make sure that the American 
people get what they need, that the Federal Government responds 
accordingly, and that we put in place a system that truly 
works. And so we are very thankful for our witnesses that are 
here today.
    Chairman Issa and Ranking Member Cummings addressed some of 
this in a bill last Congress. And, indeed, they have introduced 
a similar bill this year, which is H.R. 653, which is the FOIA 
Oversight and Implementation Act. That particular bill 
addresses a number of concerns.
    But what I am interested to hear from our witnesses today 
is: Does it go far enough? What do we need to do? What are some 
other areas that the perhaps the ranking member and I can work 
on in a bipartisan way to make sure that the American people 
are informed?
    I thank you.
    Mr. Meadows. And, with that, I would recognize the ranking 
member for his opening Statement.
    Mr. Connolly. Thank you, Mr. Chairman. And thank you for 
holding this hearing.
    Welcome, to our panelists.
    I do want to begin, like you, in acknowledging both Darrell 
Issa and Elijah Cummings for reintroducing the FOIA Act, H.R. 
653. As a co-sponsor of that bill, I am pleased we are 
highlighting the issue so early in this Congress, although we 
see just how much press interest there is in this very sexy 
subject.
    But it is an important subject. It may not be headline-
grabbing, but it is how citizens can access their government. 
It is how we hold people accountable. I was in local government 
for 14 years in the Commonwealth of Virginia.
    We have very strict FOIA laws in Virginia. And the local 
government had very limited timelines to respond to requests, 
and we took it very seriously. And I hope that same spirit will 
ultimately imbue the Federal Government as well, Mr. Chairman.
    This bill would reform a cornerstone of open government law 
and improve access to government records. One of the important 
reforms would be to require a single Website for FOIA to submit 
requests to any agency. I think this provision is important 
because it will allow the government to use technology to 
improve the FOIA process both for requests and for the 
responding agencies.
    The bill requires the director of OMB, in consultation with 
the Attorney General, to ensure the operation of a consolidated 
on-line request portal. Some agencies, including EPA and GSA, 
have already been working on such a portal.
    Agencies would also be required to post on-line all 
releasable information that has been requested three or more 
times and to review their systems of records and post 
releasable information on-line if it is likely to be in the 
public interest.
    Another key provision of this bill would be to require that 
agencies notify requesters of their rights to seek assistance 
from the agency for a public liaison and the Office of 
Government Information Services. FOIA litigation can be costly 
and time-consuming.
    By emphasizing this right, the bill would encourage 
requesters to utilize dispute resolution and mediation services 
as a meaningful alternative to litigation. The bill would 
require the Government Accountability Office to catalogue the 
number of statutory exemptions under (b)(3) and agency use of 
such exemptions.
    Individual statutory exemptions are often slipped into 
legislation without consultation with this committee. We don't 
even know how many exemptions are on the books. Requiring GAO 
to catalogue those exemptions will help us identify outdated or 
inappropriate exemptions.
    I look forward to hearing from all of our witnesses today. 
I especially want to make note we have a former FOIA officer 
testifying with us this morning. In his written testimony, Mr. 
Sadler States that many FOIA officers feel that their voices 
have not been heard. That is a valid point.
    We have conducted FOIA hearings in the past, but the 
previous witness panels were mostly composed of open government 
interest groups and high-level agency officials or political 
appointees. I commend the work that both of these important 
groups do.
    However, I also look forward to hearing the perspective of 
someone who had to perform ground-level implementation of FOIA. 
Mr. Sadler has more than 40 years of hands-on experience with 
FOIA that spans from FOIA denials and appeals to directing FOIA 
staff at the FDA in their efforts to reduce overall FDA 
backlogs of pending agency FOIA requests by 91 percent over a 
5-year period.
    Congratulations, Mr. Sadler. Thank you for your service.
    I also want to thank Miriam Nisbet for being here today. 
She has served in government for over 35 years, though she 
doesn't look it, and is largely responsible for the outstanding 
reputation of the Office of Government Information Services.
    Rick Blum, I don't want to leave you out either because 
your work with Sunshine in Government has helped give voice to 
the concerns of reporters, citizens, and other FOIA requesters. 
Thank you for your diligence and your keeping us accountable to 
the people we serve.
    Thank you, Mr. Chairman.
    Mr. Meadows. I thank the ranking member for his Statement 
and, obviously, for his well-prepared opening Statement.
    And I would agree with him. As we start to look at this 
information, it is critical that, regardless of the fact that 
there are not a number of reporters and cameras here, there is 
probably no component of transparency that is more critical to 
the American people than FOIA transparency.
    And so your testimony--not only will it be constructive and 
helpful, but it will be vital in terms of restoring the trust 
in our government that so many Americans want to have. So thank 
you.
    I will hold the record open for 5 legislative days for any 
members who would like to submit a written Statement.
    We will now recognize our panel of witnesses.
    And I am pleased to welcome Ms. Miriam Nisbet, former 
Director of the Office of Government Information Services at 
the National Archives and Records Administration--welcome--Mr. 
Frederick Sadler, former FOIA officer at the Food and Drug 
Administration; and Mr. Rick Blum, Director of the Sunshine in 
Government Initiative. Welcome to you all.
    And pursuant to committee rules, all witnesses will be 
sworn in before they testify. So if you would please rise. If 
you would raise your right hand.
    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?
    Let the record reflect that all witnesses have answered in 
the affirmative.
    Please, you may take your seat.
    So in order to allow time for discussion, you will be 
giving your testimony. I would ask that your oral testimony be 
limited to 5 minutes, if you can. Your entire written 
Statement, however, will be made part of the record, and we 
have that.
    And so we will first recognize you, Ms. Nisbet, for your 5-
minute oral testimony.

                       WITNESS STATEMENTS

                   STATEMENT OF MIRIAM NISBET

    Ms. Nisbet. Thank you. And good morning, Mr. Chairman, 
ranking member Mr. Connolly, and members of the subcommittee.
    I am Miriam Nisbet, founding Director of the Office of 
Government Information Services at the National Archives and 
Records Administration. I was privileged to serve in that 
position from September 2009, when the office opened its doors, 
until I retired a few months ago, at the end of November 2014.
    Today I speak as a private citizen who, like you, cares 
deeply about the right of my fellow Americans to access 
government information. I appreciate the opportunity to talk 
with you about the FOIA Oversight and Implementation Act of 
2015. The bill covers a lot of ground; so, I will focus my 
comments on those portions of H.R. 653 that pertain to the 
Office of Government Information Services, usually referred to 
as OGIS or the FOIA ombudsman.
    In its first 5 years, the dedicated staff of seven put into 
action the few words that direct its two-pronged statutory 
mission: Providing mediation services to resolve FOIA disputes 
and reviewing agency policies, procedures, and compliance. By 
any measure, it has been a success.
    Why, then, does H.R. 653 have numerous provisions that 
directly affect OGIS? The co-sponsors of this bill, as you have 
already mentioned, and the one passed unanimously by the House 
in the last session has Stated that the purposes include 
strengthening the FOIA ombudsman's office and increasing its 
independence and bolstering the use of dispute resolution in 
the FOIA process.
    How would it do that? First, the bill more clearly spells 
out the responsibility and authority of OGIS to review agency 
FOIA compliance, to identify ways to improve compliance, and to 
report broadly on its findings. The changes also would affirm 
the role of OGIS as a key component in the FOIA ecosystem, as 
Congress envisioned.
    Second, the bill would go a long way to making dispute 
resolutions an integral part of the FOIA process. Among the 
critical changes are that agencies would be required to notify 
a requester that, while he or she may go to court if 
dissatisfied with the agency's decision, the requester also has 
the right to turn to the internal FOIA public liaison and to 
OGIS. Dispute resolution can conserve scarce resources and it 
can head off costly and time-consuming lawsuits. Moreover, the 
availability of dispute resolution at all stages of the FOIA 
process is just good customer service.
    Third, the revisions would guarantee independence of the 
ombudsman's office. Congress wisely placed OGIS in the National 
Archives, an agency whose primary mission is to provide access 
to government information and which does that very well. 
Nonetheless, under the law now, OGIS is not an independent 
watchdog or overseer, as I have heard it described. OGIS is a 
component of the executive branch and must send its proposed 
recommendations through the intra-and interagency review 
process that all agencies must follow, unless there is a 
specific exception by law.
    If you want recommendations, reports, and testimony that 
have not had to be reviewed, changed, and approved by the very 
agencies that might be affected, then you should change the 
law. That doesn't mean that OGIS wants to or will be the FOIA 
police. That role is simply not compatible with the neutral, 
impartial mediator who brings parties together voluntarily to 
resolve their differences.
    However, the authority to report directly to Congress, as 
H.R. 653 provides, would be an important reform for an office 
that hears complaints, resolves disputes, reviews compliance, 
and is expected to speak truth to power. I might add that, if I 
were still the Director, I could not say this.
    The FOIA ombudsman has demonstrated that it can build 
strong bridges that make the Freedom of Information Act work 
more smoothly and move us away from such an adversarial 
environment. OGIS can take on the additional responsibilities 
envisioned by H.R. 653, and I hope it will be given the 
resources to serve both the general public and the Federal 
agencies even more effectively.
    Thank you. I look forward to answering your questions.
    Mr. Meadows. Thank you, Ms. Nisbet.
    [Prepared Statement of Ms. Nisbet follows:]    
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Meadows. And the ranking member and I will certainly 
have some followup. We were whispering, asking some questions, 
as you had that.
    So the chair would now recognize Mr. Sadler for 5 minutes.


                STATEMENT OF FREDERICK J. SADLER


    Mr. Sadler. Good morning, Chairman Meadows, Representative 
Connolly, members of the subcommittee.
    It is both a pleasure and a privilege to have been invited 
to join you this morning to discuss the FOIA program in the 
Federal Government. And, in particular, Representative 
Connolly, I appreciate your kind thoughts.
    I would like to note at the outset that my testimony solely 
reflects my own opinion and is not necessarily that of the 
department or the agency in which I so proudly served for more 
than 40 years. In the interest of time, I think I need to focus 
comments on just a few of the aspects of the draft which----
    Mr. Meadows. Mr. Sadler, could I just ask you to pull that 
mic up a little bit closer. Thank you.
    Mr. Sadler. I am sorry. I was not sure how far it--is that 
OK?
    In the interest of time, I think I need to focus my 
comments on a few aspects of the draft which are, in my view, 
the most problematic.
    With regard to the foreseeable harm test, if I understand 
it correctly, the foreseeable harm test would not be applied to 
those exemptions which are mandatory withholding, such as 
national security or trade secrets. However, this means, then, 
that the foreseeable harm test would apply to even those 
exemptions which have a minimal discretionary component. I 
think that, as proposed, this has the potential to 
unintentionally delay the responses issued by Federal 
Government, increase backlogs, and almost inevitably result in 
increased disclosure-based litigation.
    First, in my opinion, Exemption 2 and Exemption 7 should be 
exempted from the foreseeable harm test. I believe the statutes 
themselves in court decisions have subjected those exemptions 
to the position which basically eliminates the need for 
foreseeable harm.
    That would then focus the foreseeable harm test solely on 
Exemption 5, which appears to be the real area of concern in 
the requester community. I think it would be beneficial to both 
public and private sectors to require a breakout of Exemption 5 
similar to what we do in Exemption 7. 7 has six parts, and you 
must identify the exemption at the site of every redaction.
    If you use Exemption 7--I have to say 7(a), 7(b) and 7(c)--
we could do the same thing with Exemption 5 and separate out 
those areas which are of minimal concern to the requester 
community. 5(a), for example, could be deliberative in process, 
a predecisional process. 5(b) could be attorney-client 
communication. And 5(c) could be attorney work product. In my 
experience, general counsel records are rarely at issue in 
concerns.
    Portion-marking would be new. It would require 
reprogramming agency internal working and tracking systems and 
could not be implemented immediately, but it would be both 
workable, measurable, and enforceable. However, this raises 
another issue.
    If a foreseeable harm analysis would have to be in writing, 
it creates a record which would, by definition, be releasable 
under the Freedom of Information Act. And since these are 
dealing with deliberative matters, by definition, these will 
probably contain information about pending regulatory issues, 
public health issues, national security, foreign policy, and 
trade secrets. And so, if a written analysis were to be 
required and then subject to release, there is every 
expectation that the analysis could not be released in its 
entirety.
    That raises another concern, that the requester community 
will not have full access to the deliberation and, therefore, 
will initiate litigation based solely on a discrepancy of 
interpretation or a need for additional information.
    Second, the posting of frequently requested records or, 
indeed, all records requested under the FOIA, as has been 
proposed in some aspects of the media, is probably the single-
most problematic component to implement. There is a fundamental 
conflict between the FOIA expectation or statutory mandate, if 
this were enacted, and the Americans with Disabilities Act.
    The Americans with Disabilities Act has a requirement 
within it that requires that all records on Federal agencies be 
audibly read to those individuals who have visual handicaps. 
That means that the records must be in a specific software 
program which would enable this. And most Federal agencies are 
creating records in that manner, but submitted records or 
records otherwise obtained are not.
    The conversion, which can be done, is called remediation. 
Remediation is extremely time-consuming and can be extremely 
expensive. And there is no software program on the market with 
the capability of remediating records to the extent that a FOIA 
officer would not have to re-review the document in its 
entirety line by line, word by word.
    I would suggest that the fee structure is unnecessarily 
complicated and that the basis for this lies in the statute and 
it needs to be reviewed it its entirety. If there are issues 
relating to the granting of fee waivers for media, public 
interest groups, or nonprofits, it seems entirely appropriate 
to address those issues, but still to review the overall fee 
schedule.
    And then I believe efforts need to be considered which 
would reduce the impact of disclosure-based litigation. Clearly 
the establishment of public liaisons in OGIS have been steps in 
that direction. I have had the pleasure of knowing Ms. Nisbet 
for an extended time, and I have worked with her closely over 
the past decade. And I would commend her efforts and those of 
her staff, but there are insufficient incentives for a 
requester to participate in the mediation process and all too 
often they jump directly to litigation.
    With regard to having all Federal agencies update their 
regulations, 180 days, as Stated, is simply insufficient. 
Double or even triple that amount of time may not be 
sufficient, depending on the extent of the regulations and the 
complexity of the records with which the agency deals.
    I would suggest that Congress consider amending the 
language within the statute which is being interpreted as 
constraining or even preventing Justice Department revision of 
administrative portions of the FOIA regulations governmentwide.
    If DOJ had the authority to revise the administrative 
components of FOIA regulations, the process could be undertaken 
once. As it is proposed, 99 Federal agencies, all of whom are 
subject to FOIA, will have to go through the process of 
updating their regulations.
    The issue of creating a single governmentwide portal for 
submission of a request is very interesting, but it is replete 
with concerns because this is not well defined.
    In the interest of time, I will make one last comment and 
then defer to the committee and the panel.
    I would strongly support the creation of a FOIA Council, 
although I would suggest that the chief FOIA officer is not 
necessarily in the best position to understand the complexities 
of the statute. Since, by definition, this is an adjunct duty, 
you might want to consider making it the most knowledgeable 
individual at the highest level.
    I appreciate the opportunity to join you today, and I look 
forward to answering any questions. Thank you.
    Mr. Meadows. Thank you, Mr. Sadler.
    [Prepared Statement of Mr. Sadler follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
            
    Mr. Meadows. The chair recognizes Mr. Blum for 5 minutes.

                     STATEMENT OF RICK BLUM


    Mr. Blum. Thank you, Mr. Chairman, Ranking Member Connolly, 
and members of the subcommittee. Thank you for the opportunity 
to testify today.
    I am Rick Blum, and I represent the Sunshine in Government 
Initiative, which is a coalition of media associations 
promoting open government. And I can assure you at conferences 
and discussions among journalists, this hearing today and your 
work on improving FOIA is of great interest to journalists.
    Mr. Chairman, we appreciate your attention early this 
Congress to strengthening FOIA, and we hope Congress will enact 
the strongest possible reforms soon. I would like to use this 
time to briefly highlight a few points.
    FOIA remains a powerful tool for the public to learn about 
matters of public interest. However, journalists and other 
requesters continue to be frustrated that the process involves 
long delays and avoidable procedural obstacles.
    The FOIA legislation addresses these problems with several 
steps that are very productive, such as strengthening OGIS, all 
digital processing and tracking, and reining in the secrecy 
statutes under Exemption (3) that you mentioned, Mr. Chairman. 
And those laws create anti-disclosure loopholes in the law.
    First, despite frustrations, FOIA does remain an important 
tool to document sometimes uncomfortable facts. Armored vests 
designed to stop bullets failed the military's own ballistics 
tests, but were sent to soldiers in harm's way anyway. Faced 
with a reporter who used FOIA to obtain the test results, the 
military quickly recalled over 5,000 vests.
    And for the Associated Press, a member of our coalition, 
FOIA helped reveal that local law enforcement in Ferguson, 
Missouri, set up a no-fly zone around the protest last summer 
not for safety reasons, but to limit media coverage.
    At the same time, FOIA remains for many journalists a 
frustrating and broken system. The long waits, avoidable 
obstacles, and many redactions too often allow agencies to put 
secrecy before disclosure. One reporter even told me that his 
initial request for records was denied and his appeal was 
handled by the very same office that denied the request. That 
should never happen, especially with OGIS.
    The FOIA reform bill now before Congress takes important 
steps to address these problems, and I would like to highlight 
them now that are of particular importance to our community.
    First, Congress should clarify it intends OGIS to speak 
with an independent, assertive voice. We actively supported the 
creation of OGIS and support its work today. We even gave an 
award to the retired Director for her work.
    Nonetheless, many news organizations and reporters have 
stopped taking more serious substantive disputes to OGIS. OGIS 
has for 5 years ably handled disputes involving 
miscommunications and procedural problems and other disputes 
while identifying common problems and commonsense solutions.
    OGIS is now positioned to push agencies assertively as 
appropriate when they refuse to talk or wrongly deny a request. 
By requiring OGIS to report specifically on its advisory 
opinions, the bill emphasizes that written opinions from OGIS 
are an important way OGIS can help correct and prevent agency 
misdeeds.
    In addition, before making its recommendations public, as 
former Director Nisbet testified, OGIS must get input from 
other agencies and clearance from the Office of Management and 
Budget. These reviews limit what OGIS can say, delay its 
recommendations, undermine learning from past disputes, and 
should be eliminated. To be effective, OGIS requires an 
independent voice.
    Next, better electronic tools to manage requests and 
responses should help agencies and requesters alike. While it 
would be fun to see a drone deliver documents sometime soon, a 
good digital system that meaningfully manages FOIA's logistics 
for both requesters and agencies would be a great next step.
    In fact, such a system, FOIAonline, is in use by about 11 
agencies, and Ms. Nisbet guided its development. The bill's 
call for a FOIA portal and standards for intraoperability help 
move more agencies into these kinds of systems that talk to one 
another and avoid paper processing. And that is very, very 
helpful.
    Finally, I want to say a word about the secrecy statutes 
under Exemption (3) that you mentioned, Mr. Chairman. They come 
up way too often in legislation. As you mentioned, the 
government doesn't have a good count. By our count, we found 
about 250 to maybe well over 300, depending on how you count 
them. And, more troubling, we play Whack-A-Mole, locating and 
finding these unnecessary, unjustified and, at times, overbroad 
proposals. And this committee has done a great deal of work 
successfully in knocking these down.
    They deal with satellites tracking space junk, reforms of 
the financial system, and plans for high-speed rail, to name a 
few. And so we appreciate your work on these Exemption (3) 
statutes and look forward to continuing to bring these to 
light.
    In conclusion, Mr. Chairman, H.R. 653 and its counterpart 
bill in the Senate include many bipartisan improvements, and we 
look forward to celebrating its quick enactment. Again, we 
appreciate the opportunity to testify, and I look forward to 
answering your questions.
    Mr. Meadows. Thank you, Mr. Blum.
    [Prepared Statement of Mr. Blum follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]      
    
    Mr. Meadows. Thank each of you for your testimony.
    The chair is going to recognize first the gentleman from 
Kentucky, Mr. Massie.
    Mr. Massie. Thank you, Mr. Chairman.
    Ms. Nisbet, could you give us an example--a hypothetical is 
OK, but a real example would be better--of how OGIS is supposed 
to work and then give us an example of ways that it hasn't been 
able to function in the way Congress intended, like with a 
Freedom of Information request, a specific one.
    Ms. Nisbet. Well, as you know, OGIS does have a two-pronged 
mission. One is providing mediation services to resolve FOIA 
disputes. And that is something I would refer you to the annual 
reports that OGIS has made available that details its work.
    By the end of Fiscal Year 2014, it had assisted in 
something like 3,500 FOIA-related matters. And that spans very 
simple matters, from people coming to OGIS because they don't 
know where to make a request or how to make a request, to much 
more complex matters that involve real mediation, you know, 
more what you would think of as mediation between the parties, 
in order to head off litigation.
    Mr. Massie. So you've had 3,000 successes. But what is an 
example of where you have been stymied? And I really appreciate 
you coming here today as a citizen and appreciate the fact that 
you wouldn't be able to say some of this if you were still 
there. So give us an example of what you can tell us today that 
you couldn't have told us.
    Ms. Nisbet. Well, the other part of the mission is 
reviewing agencies' policies, procedures, compliance, and 
making policy recommendations to Congress and the President on 
ways to improve FOIA. And that is a process, as I mentioned in 
my oral and written testimony, that did run into problems in 
that OGIS is part of an executive branch agency.
    Agencies do have to go through an intra-and interagency 
review process. In order to make recommendations, particularly 
legislative recommendations, those have to be approved through 
the process, including through the Office of Management and 
Budget. And I can tell you that, in a number of instances, that 
was a rather arduous process.
    Mr. Massie. Do you feel that this legislation can make that 
less arduous?
    Ms. Nisbet. Certainly I do. Because the way the bill is 
written right now would make it quite clear that 
recommendations, reports, and testimony will be communicated 
directly to Congress without having to go through those 
reviews.
    And that, Representative Massie, doesn't mean that OGIS 
would not be regularly conferring and talking with all the 
different agencies that it works with every day and being sure 
to include in any recommendations that it makes the concerns of 
the agencies. It is not that. It is that those agencies would 
not be reviewing, approving, and possibly changing those 
recommendations before Congress sees it.
    Mr. Massie. It certainly defeats the purpose of OGIS if it 
all has to be filtered in that way before it comes back to 
Congress, doesn't it, as an independent?
    Ms. Nisbet. You said that perfectly.
    Mr. Massie. Thank you very much.
    Mr. Blum, could you give us some specific examples. I know 
you alluded to a few where you have been stymied or where OGIS 
was stymied in its ability to help you or the media come to a 
resolution on a FOIA request. I like hearing the specifics.
    Mr. Blum. Specifics, yes. I mean, very much so. I can tell 
you that--you know, I guess really a great example of where 
FOIA wasn't really working well and where we would like to 
see--you know, OGIS could have a role in speaking a little bit 
more forcefully and knocking things down are--you may remember 
the ``Miracle on the Hudson'' landing when the airplane was 
hit.
    Mr. Massie. Sure do.
    Mr. Blum. There was a bird strike and the airplane had to 
make that just amazing landing. Well, in the days and weeks 
after that landing, reporters wanted to know from the FAA, 
``How often does this happen? Is this a persistent problem or 
was this just kind of a one-in-a-million kind of thing?''
    And the FAA initially said, ``Yes. We have information that 
airports voluntarily share, and we're going to give that out.'' 
And then within a few days they reversed themselves and said, 
``No. No. No. This would affect transportation security. And 
there is an Exemption (3) statute that allows us to withhold 
information if disclosure might harm the ability of us to 
secure air safety.''
    Well, there was a lot of public attention. Actually, the 
news media did write about that and did write about FOIA and 
the limitations. And, to their credit, the Transportation 
Secretary overturned that and released the information while 
safety experts were saying, ``Just mandate reporting. Get all 
this stuff in.''
    I think that is a role where it doesn't have to get to that 
level and OGIS can say, ``Wait a minute. Do you really mean to 
say that bird strikes on airplanes, if discussed and disclosed, 
would encourage someone else to create this kind of accident?''
    That is just not going to happen. I think that is where you 
have--Ms. Nisbet is correct. We don't have a FOIA police, but 
OGIS is the closest thing that we have. And we would like some 
rationality and clarity when these kinds of results happen.
    Mr. Massie. Thank you. I am particularly interested when 
public safety is the issue at hand.
    Thank you, Mr. Chairman, for yielding to me. I yield back.
    Mr. Meadows. I thank the gentleman from Kentucky.
    I now go to the ranking member of the subcommittee which 
has jurisdiction over this particular area, the gentleman from 
the 11th District of Virginia, Mr. Connolly.
    Mr. Connolly. I thank my friend, the chairman.
    And I am going to try to get three questions in, one for 
each of you. So bear with me and try to be concise, and I will, 
too.
    Exemptions, Mr. Blum. The Constitution does not guarantee 
access to information. It protects the press, freedom of press, 
but the dialectic is set up, you know, ``Good luck in trying to 
get access.''
    It is really this and other statutes that try to codify 
that gray area in between in terms of, ``What do you have 
access to? What don't you?'' It is the natural order of things, 
I think government wanting to protect its information and the 
press wanting to get at it.
    Not always is the press motivation as noble as you suggest. 
Sometimes, actually, their purposes may not necessarily serve 
the purposes of good government. But, generally, we assume they 
are truth-tellers and they are trying to get at the truth.
    Could you list some egregious exemptions currently allowed 
that you think we ought to be addressing in the new 
authorization.
    Mr. Blum. Well, you said you had three questions. So I am 
not sure I can do that question justice.
    Look, FOIA does lay out a really good structure to identify 
what information the public should have access to and what 
interests there are to protect that justify withholding. That 
actually is a very good construct, national security, privacy, 
trade secrets, those kinds of things.
    But the question that reporters always ask is, ``Why is it 
so procedurally difficult? If I am sitting in floodwaters in 
Katrina and I have requested the test results, why can't I get 
that quickly?'' Because the homeowners, my readers, are asking 
me, ``When can I come back to my home?''
    Mr. Connolly. So if I am listening to you correctly, it is 
not just about exemptions? It is about streamlining the process 
as well?
    Mr. Blum. Absolutely. It is exemptions and streamlining the 
process. And I think that is what this bill actually does very 
well, is it does try to address the process.
    Mr. Connolly. Let me invite you, on behalf of myself and 
the chairman, if I can presume--we'd love to see a list, if you 
want to develop it, of exemptions you think we ought to be 
addressing in the law.
    Because there may be things that escape us we hadn't 
thought about that you're dealing with, and this is the time to 
try to do that. So if there are egregious exemptions we ought 
to be addressing, I welcome and I know Mr. Meadows welcomes 
your giving us some guidance in that respect.
    Mr. Blum. I appreciate that very much. And I will.
    Mr. Connolly. Thank you.
    Mr. Blum. I will also say just very, very quickly, this 
bill has been discussed and debated for a very long time and, 
you know, we really hope that Congress can move on this and get 
this thing into law.
    Mr. Connolly. Great. Thank you.
    Mr. Sadler, you made a passing reference to problems with 
the sort of digital portal provision in the bill, that, yes, it 
looks like a good idea, but it is going to be fraught with 
problems, if I heard your testimony correctly.
    Could you elaborate just a little bit on that. Because part 
of our concern is we want to bring the government into the 21st 
century with respect to technology, especially with younger 
generations.
    They expect that it is going to be done digitally, 
electronically, it is not a bunch of paperwork. This was seen, 
I think, as something that would be a youthful reform, bringing 
us up to date. So your note of caution struck me, and I wonder 
if you could elaborate.
    Mr. Sadler. I would be happy to, sir.
    When you have nearly three-quarters of a million requests 
being submitted, if they are all going to go through a single 
portal, we are essentially establishing an entire division 
within an agency. This could require a couple of dozen 
individuals or more to simply log and disseminate.
    What is also not clear is whether or not there would be a 
certain amount of oversight, when the log would become public, 
whether or not the requests would be farmed out to the 
individual agencies responsible for replying.
    And then the 20-day time period would start. What happens 
if requests have to go to one agency and there has been a 
misunderstanding and the request has gone to another agency? At 
what point did the clock begin?
    Hypothetically, if you have a food-related issue and you 
came to my former agency, but the information related to the 
recall of a meat product, it would be misdirected and would 
have to go over to the USDA. So there are going to be issues 
like that.
    Document size is an issue. Many individuals are using 
electronic systems which are not capable of either transmitting 
or submitting sizable documents. That is an issue. There are 
situations in which individuals request their own records and, 
in many cases, you need an original signature. So there still 
needs to be some kind of duplication. And in my situation, 
particularly when you deal with public health, there are many 
instances in which the letter itself cannot be made public.
    I find this more often with consumers because they feel 
that they need to justify what they want to ask for and will 
include medical data, Social Security numbers. That happens a 
great deal with Social Security and Veterans Administration. 
And the letters can't be made public.
    So there is an issue about when these will be disseminated 
and how that data base then--if it transmits information to the 
Federal Government, how it would feed back to a central 
repository for posting. I am assuming that you would utilize 
something like foia.gov that is based in the U.S. Department of 
Justice.
    But the concept is laudable. If you want to simplify access 
for the public, how would we go about doing that and what 
restrictions need to be applied? And I am more concerned here 
than anything with protecting individual privacy. It becomes a 
different issue.
    Mr. Connolly. Thank you.
    My time is up. And if there is the opportunity, I'll return 
to Ms. Nisbet. You.
    Mr. Meadows. I thank the gentleman.
    And the chair recognizes the vice chair of this particular 
subcommittee, the gentleman from Michigan, Mr. Walberg.
    Mr. Walberg. Thank you, Mr. Chairman.
    And thanks to the panel for being here.
    Ms. Nisbet, thank you for your service with OGIS and thank 
you for your willingness to be able to share things that, as 
you said, you couldn't share if you were still in that position 
with us today.
    Let me ask you, when FOIA disputes come to OGIS for 
resolution, what's the result?
    Ms. Nisbet. Well, it is varied, depending upon what the 
dispute is. Often the requester--or sometimes it is the agency 
that comes to OGIS--there is simply a lack of communication. 
There has not been good communication or there has been no 
communication at all between the requester and the agency.
    OGIS is that neutral party that can step in and talk to 
both to find out what the concerns are and, essentially, broker 
an agreement about how long it is going to take or what the 
fees might be, issues like that, or if the case has progressed 
further, really bring the parties together to talk about 
specific exemptions or where the problems lie.
    The result, one, in the best of all circumstances, both the 
requester and the agency have agreed on a path forward and the 
process is streamlined administratively and, hopefully, 
litigation is averted.
    Certainly that is not always the outcome, but more often 
than not the parties simply having that communication, that 
conversation, really helps the process.
    Mr. Walberg. Has there been any significant frequency that 
information that the agency was reluctant to disclose is now 
disclosed?
    Ms. Nisbet. Well, sometimes that happens, but that is only 
one of many outcomes. The issues may not always be about the 
information being withheld. It is how the request is being 
handled, questions about fees, the scope of the request, the 
search for the documents. So all kinds of issues.
    Mr. Walberg. Will the language of H.R. 653 help OGIS get 
through to agencies, I guess the specific concept that, by 
``specific identifiable harm,'' you really mean specific?
    Ms. Nisbet. Well, the current policy of the government 
through the Attorney General's memorandum is that agencies are 
to identify a foreseeable--that they are not to withhold 
information if they have not been able to identify a 
foreseeable harm. And that is built in, of course, to the 
exemption system.
    Mr. Walberg. But this bill will help foster that still 
further, that specific means specific?
    Ms. Nisbet. It would codify the current policy.
    Mr. Walberg. Thank you.
    Mr. Blum, FOIA contains nine exemptions that allow agencies 
to withhold records. According to the administration estimates, 
only 30 percent of FOIA requests resulted in full disclosure in 
Fiscal Year 2013. This seems low.
    Is it a struggle to get full and unredacted responses from 
the agencies?
    Mr. Blum. Is it a struggle? Well, it absolutely is a 
struggle. It is also very difficult to know, once you get the 
documents back and you see those blackouts, are they 
appropriate.
    Thanks to Ms. Maloney, who was very helpful in 2007, 
agencies now have to say which exemption, which statute, they 
are using in blacking that out.
    But with deliberative process, it is very hard to--you 
know, how can you challenge something if you don't really 
understand the logic behind the redaction and oftentimes you 
don't really see it?
    There is an organization in the National Security Archives 
that actually will request something, you know, a couple times 
and then they'll compare the redactions, and it turns out that 
the redactions don't match. And so you get the whole document 
and it raises the question what is really----
    Mr. Walberg. So persistence pays off at that point.
    Along that line, Mr. Blum, on the President's first full 
day in office, he issued a memo on FOIA, urging agencies to 
adopt a presumption of disclosure. Attorney General Holder 
reaffirmed the President's promise for openness.
    Has the administration lived up to this commitment?
    Mr. Blum. I think the administration has worked very hard 
to live up to the commitment. They have devoted a lot of hours, 
holding a lot of meetings with agencies, saying, ``What are you 
doing about transparency? And what can you do in setting 
benchmarks?''
    They sent back all the reduction goals. FOIA is just a 
very, very difficult process. And so, once it gets filtered 
down and the procedural obstacles, as I was mentioning, you 
know, get filtered down to really what reporters are 
experiencing and other requesters are experiencing, it is very 
difficult to see the changes come to life.
    So that is why we think that it is very appropriate for 
Congress to try to streamline the process, to try to make the 
procedures work better, so at least you're taking out all those 
process battles that reporters talk about, you know, ``Oh, I 
finally got them to change my address. So I am actually getting 
the request to the right place eventually,'' you know, ``I am 
getting an estimated completion date.''
    You shouldn't need that. You should be able to look at the 
statistics and say, ``OK. For a request like mine, it takes the 
FDA 60 days to do this. It will take them 15 days to do that,'' 
and I'll call them back and I'll keep tabs on my request.
    So I think the procedural fixes in the bill just are real 
common sense, and I would hope that they would not be perceived 
as controversial in any way.
    Mr. Walberg. Great. Thank you.
    I yield back.
    Mr. Meadows. I thank the gentleman.
    The chair recognizes the gentleman from Massachusetts, Mr. 
Lynch.
    Mr. Lynch. Thank you, Mr. Chairman.
    I think this is your inaugural hearing as chairman. So 
congratulations. And I think it is a very important topic.
    I want to thank the panelists for helping us out.
    You know, this committee especially--we're charged with 
government oversight. And, frankly, the scope of government 
activity and the complexity of that activity and how it affects 
the American people requires us, really, to rely on the public 
through FOIA to almost be almost like a million private 
inspectors general.
    So all these 700,000 requests a year actually amplify what 
we are struggling to do here on the Oversight Committee. So we 
really have a keen interest in making sure that we adopt some 
of the reforms that you've spoken about.
    I think it is very, very important to the public trust. And 
when you get these long delays and sometimes unreasonable 
obstruction by these agencies to very important requests from 
our citizens, you know, that is an attack on democracy in a 
very real way.
    Mr. Sadler, you talked about in your testimony a very 
interesting issue regarding Section 508 of the Americans with 
Disabilities Act. That provision protects disabled individuals 
from discrimination when they request information.
    As you explained, Section 508 requires agencies to ensure 
that persons with disabilities have comparable access to data 
as persons without disabilities. This means that a record 
posted on an agency Website has to be accessible to blind 
individuals through text-to-speech software, and you mentioned 
that we're simply not there yet with some of this software.
    Can you explain the process that the agency is engaged in 
in trying to make sure that the freedoms and rights within the 
statute are actually being met or at least we're working toward 
that point.
    Mr. Sadler. It is a difficult and complicated question to 
answer. So I am going to try and keep my responses short 
because I think that you have honed in on a particular concern.
    If the FOIA at the moment for posting is a policy and the 
ADA is a law and the FOIA officer has to choose because of 
resource issues which to meet, they will meet the requirements 
of the law.
    If the FOIA requirement for posting frequently requested 
records or more were to become law and there is no increase in 
resources, the FOIA officer will have to choose which statute 
to violate.
    I can give you numerous examples. But when you think about 
it, remediation does not work for anything that is handwritten, 
foreign languages, computations, graphs, charts, and 
photographs. So when we look at the concept, it is problematic 
from a conversion standpoint.
    I'll give you two examples, neither of which are intended 
to be flippant, but may be perceived as such. So if that is the 
way that it comes across, I will apologize up front.
    We had a document that was a quarter of a million pages 
that was required to be made public. We did not have the 
resources internally to ensure that that document was posted 
and made publicly available in a 508-compliant manner within 20 
days and went to try and contract it out.
    The remediation costs, low bid, was $90,000 for a single 
document. This is not a sustainable cost level, given the 
volume of what we are handling.
    The other problem is remediation will pick up every little 
nit and unclear line as part of its optical character 
recognition. An ``A'' becomes an ``E.'' An ``I'' becomes an 
``L.'' And, therefore, it is rendered illegible and unusable by 
the visually handicapped.
    Again, not to be flippant, but we issued a letter to a food 
company for distributing PowerBars, a breakfast bar kind of 
thing, which did not include specific ingredients that were 
required to be included by law, specifically, ingredients that 
were allergy-inducing. And in this case the firm did not put 
peanuts on the product labeling.
    The letter of admonition came to my office for posting. It 
came to us in Word. At that time, it could not be remediated 
easily. So we went through the process and posted the letter.
    Unfortunately, the phrase ``allergy-inducing ingredient'' 
was mistranslated by the optical scanner as ``orgy-inducing 
ingredient,'' which was publicity that the firm couldn't buy. 
Everything had to come down immediately, and all of the 
documents had to be reread line by line, word by word, to 
ensure that they are appropriately remediated.
    The alternative is to obtain a temporary waiver to post 
unremediated documents. We have done this on numerous 
occasions. But on day 21, the document must either be 
remediated or removed.
    We have had three separate lawsuits unrelated for 22,000 
pages of pacemaker materials where the pacemaker lead 
deteriorated in place between the pacemaker and the attachment 
to the ventricle.
    The documents were requested. Litigation ensued in all 
three cases on day 21, and we agreed to post the documents free 
of charge on a rolling basis. But on day 21, everything had to 
come down.
    We can redact the document electronically and burn it to a 
CD. I can keep that in a public reading room, and I can 
continue to provide that to a requester with a 24-hour 
turnaround. What I couldn't do is leave it on-line.
    Mr. Lynch. Yes. I understand.
    Well, we are certainly open and eager to make sure that 
handicapped individuals have access to this. I guess it is the 
aspiration of the legislation. That is our goal. And we need to 
figure out--like you say, it could be a question of resources 
in some cases, but we have to make sure that we follow the 
letter of the law and make progress so that handicapped 
individuals have this right.
    And I thank you. You are very articulate in your response. 
I appreciate it.
    And I yield back. Thank you, Mr. Chairman.
    Mr. Meadows. I thank the gentleman.
    The chair recognizes the gentleman from South Carolina, Mr. 
Mulvaney.
    Mr. Mulvaney. Mr. Sadler, let's stay on that topic because 
I picked that up during your initial testimony and I want to 
followup on some of the things Mr. Lynch was asking you about.
    Mr. Mulvaney. So are you telling us that every single 
document that comes into your office has to be remediated at 
some point?
    Mr. Sadler. Yes, sir.
    Mr. Mulvaney. And that every single document then needs to 
be----
    Mr. Sadler. When it's posted.
    Mr. Mulvaney. OK. When it's posted.
    --has to be checked? So someone has to sit and listen to 
the remediation while they are looking at the document to make 
sure the remediation is accurate?
    Mr. Sadler. You wouldn't necessarily have to listen to it, 
but you would have to go back and read it to ensure that the 
remediation correctly interpreted the characters that are on 
the page. As I say that, mathematical computations, 
photographs, foreign languages, handwritten comments----
    Mr. Mulvaney. I'm not trying to be difficult.
    But you would have to listen to it and read it at the same 
time, wouldn't you, to make sure that it has been remediated 
accurately?
    Mr. Sadler. If it is remediated correctly, it would be read 
correctly.
    Mr. Mulvaney. OK. I'm sorry.
    So someone actually reads it out loud? I thought you said 
before there was a software that does this.
    Mr. Sadler. If you're a visually handicapped individual, 
you need to be able to sit at your computer in your place of 
work or your home and access any Federal Government Website, 
look at a particular document, hit it, and then your software 
will read that document back to someone who is visually 
handicapped. That's the purpose of 508. I'm not sure if that 
answers your question.
    Mr. Mulvaney. Do you have any idea what you spend on this?
    Mr. Sadler. Not a clue. A great deal of it is done 
internally. The shorter documents are done that way. And at 
this point, because the Attorney General's Office at DOJ has 
been monitoring this, beginning in 2007, they did a 
governmentwide survey and requested a schedule for full 
remediation, and I have seen Department of Justice, Office of 
the Attorney General, instructions on continued remediation 
practice in 2011.
    Most government documents are being created in a remediated 
manner. So what we are talking about under FOIA are submitted 
documents or records that were otherwise obtained by a Federal 
agency and then redacted and posted.
    So a change in this to permit posting of unremediated 
documents, by definition, in my opinion, does not need to 
include anything authored by the government.
    Mr. Mulvaney. What percentage of the FOIA requests that you 
deal with are from folks who are visually handicapped and need 
to have the documents in an audio fashion?
    Mr. Sadler. That is not tracked. And we had a caveat on the 
Website that, if there was a problem, that they should call the 
public liaison, which was me, and ask for assistance, and we 
said that we would make that available. I never received a 
phone call in 40 years.
    Mr. Mulvaney. Mr. Lynch, if I banter into a brief colloquy, 
what I'm trying to get at is there is a better way do this.
    Mr. Lynch. Right.
    Mr. Mulvaney. Because it sounds like it's a logistical 
nightmare. It may be a financial burden on the folks who are 
required--it almost sounds like it would be cheaper to have 
somebody read it out loud to them, actually hire somebody to 
simply read it to them than to have all the documents available 
in that particular fashion.
    Mr. Lynch. Right.
    Mr. Mulvaney. So that is what I'm trying to get to. I would 
be curious--I may well followup with you after the hearing as 
to whether or not--well, I'll ask you now, since I have some 
time.
    Do you have suggestions on how to fix this and make it 
easier, still meet the goal, which is still provide the 
document to the folks who are disabled, but do so in a fashion 
that doesn't cripple your ability to deliver information?
    Mr. Sadler. In the absence of additional resources or 
funding specifically designated to meet the 508 compliance, I 
don't see how it can be done because, unless you want to--
personal opinion, sir.
    Mr. Mulvaney. OK.
    Mr. Sadler. Unless you want to expand the resources that 
are available to individual IT programs, securities programs, 
FOIA programs, even Privacy Act--and proactive posting becomes 
a nightmare that way--but unless you want to expand the 
resources, I don't see how they can keep up, unless they divert 
those scarce resources from another program.
    Mr. Mulvaney. Which will continue to subject you to various 
lawsuits.
    Mr. Sadler. It would, sir.
    Mr. Mulvaney. Thank you.
    I yield back the balance of my time, Mr. Chairman.
    Mr. Meadows. I thank the gentleman from South Carolina.
    The chair recognizes the gentlewoman from New York, Ms. 
Maloney.
    Mrs. Maloney. I thank you, Chairman Meadows. And 
congratulations on your new appointment.
    And, Congressman Mulvaney, I think you had some good points 
about how we can make government work better.
    I want to very much congratulate Ms. Nisbet on her service 
to government, having served as the very first Director of the 
Office of Government Information Services. Congratulations.
    As you mentioned in your testimony, Ms. Nisbet, OGIS is an 
office that was established in 2009 to act as the FOIA 
ombudsman by mediating disputes between FOIA requesters and 
executive branch agencies.
    Would strengthening the independence of OGIS also help the 
agency better carry out its mission as a mediator?
    Ms. Nisbet. That is a question that I will try to parse 
through.
    The independence of an ombudsman is usually one of the 
criteria for having an ombudsman because you want an impartial, 
fair mediator who can convene parties, who can also just hear 
complaints, systemic complaints, for example, or to be able to 
hear complaints that come from the range of agencies as well as 
requesters, and be able to put those pieces together and then 
to be able to report on and make recommendations for how 
improvements could be made.
    So I believe that the independence issue is helpful both to 
the review and recommendation portion of the mission as well as 
to the mediation.
    Mrs. Maloney. And, Mr. Blum, congratulations on your many 
years of service for sunlight in our government. And I really 
believe that organizations such as the Sunshine in Government 
Initiative will take more and more of an important role with 
the, really, assault on the independence of our newspapers.
    So many of them are facing financial challenges. Many have 
gone out of business. Many are merging. So that strong third 
wave that was able to really research and comment on government 
with the changes in the media are becoming weaker. So, 
therefore, your position is all the more important in what you 
are working on.
    Do you think that there is ever a role, Mr. Blum, for OGIS 
to issue advisory opinions? As you know, remediation has not 
resolved the despite. Advisory opinions can be issued. And what 
is your take on that?
    Mr. Blum. I think it would be very helpful, in fact. I 
think that, in certain circumstances, if an agency is wrong in 
its interpretation of FOIA or for requester questions and feels 
like they are kind of being jerked around, it's really helpful 
to get an independent take on the situation.
    And that's what OGIS was intended to do. It doesn't 
guarantee that newspapers or other requesters get what they 
want every single time, but provide that independent lens to 
say either the agency was right or the agency was justified or 
the agency was wrong and they call it out.
    Other bodies that deal with ethical issues in the Federal 
Government do create advisory opinion as an administrative 
record to help not just requesters, but to help agencies avoid 
a future dispute. If somebody was working for Mr. Sadler or Mr. 
Sadler himself has a question about how to interpret something, 
as a novel or a complicated request, you know, I think it's 
very helpful to have as much guidance as possible.
    There are 700,000 requests that come in every year. Surely 
an agency has dealt with the same issue in the past, and maybe 
someone could write up what happened, what's a really good 
commonsense interpretation of that. You know, it would be good 
to be able to refer back to that experience. So I certainly 
think that would be very helpful.
    Mrs. Maloney. The complaint that I hear from--whether it is 
individuals of the press is often how long it takes. And I 
believe that you are supposed to respond within 30 days of a 
request of an agency. Is that correct?
    But what happens if the agency doesn't respond? What 
recourse does an individual or the press have to get this 
information?
    And oftentimes you're on deadlines and you may have votes 
that might--information might impact your vote or stories that 
need to be filed. So can any of you--if anyone would like to 
comment on the timeframe.
    I believe it is 30 days you must respond. What happens if 
you can't respond or they don't respond? What recourse is there 
for the press or others to get the information?
    Ms. Nisbet. We're fighting over answering your questions, 
all three of us.
    Mr. Sadler. We're not fighting. We're debating.
    Mr. Meadows. That's not normally the problem we have here.
    Mr. Sadler. I think we all want a piece of that question. 
Yes, ma'am.
    Ms. Nisbet. I think I have resolved the dispute, and the 
gentlemen are very kindly going to let me answer that real 
quickly.
    The statute allows 20 working days. So that is working days 
in order to respond. And, really, there are a couple of 
recourses for a requester when the time limit is approaching or 
has passed.
    Certainly filing an administrative appeal doesn't help at 
that point. And the statute says a requester can go right to 
court if the statutory time limits have been passed, which is 
why having an alternative, having the requester be able to go 
to the FOIA public liaison for assistance in working on the 
scope of the request, to search any kinds of procedural 
questions, or coming to OGIS--and the changes in H.R. 653 would 
allow a requester to resort to a FOIA public liaison and to 
OGIS in order to avoid having to go to court, which I think 
most of us would agree would be a very, very, good alternative.
    Mr. Meadows. Thank you so much.
    The chair recognizes the gentleman from Georgia, Mr. 
Carter.
    Mr. Carter. Thank you, Mr. Chairman.
    And thank all three of you for being here today.
    I'm going to start off with Mr. Blum and ask you questions. 
You made a couple of interesting comments earlier that I want 
to expound upon.
    First of all, you talked about Ferguson and about the no-
fly zone that was imposed there.
    Mr. Blum. Right.
    Mr. Carter. You said that it was initially thought to be 
because of one reason, but it turned out to be because they 
didn't want the media to actually cover the event?
    Mr. Blum. Right. Federal Freedom of Information Act was 
really critical for The Associated Press to obtain the audio 
recordings of conversations between FAA officials and local 
officials.
    And I guess the concern, as I understand it, was not with 
the commercial traffic that was in that area, but, really, you 
can tell from the audiotapes that it was they just didn't want 
the media there.
    Mr. Carter. And that was a subjective interpretation that 
you made of that?
    Mr. Blum. Well, I think the reporter had the audio files 
and was able to document that.
    Mr. Carter. OK. But, still, it was somewhat subjective in 
the sense that he interpreted it as being that was the reason.
    Mr. Blum. Yes. And I think it goes to a larger point that 
we all want to protect the ability of law enforcement to do 
their jobs and not have disclosure to disrupt that process.
    But there are times when we really do want to make sure 
that law enforcement are doing the right thing. Maybe it was 
perfectly important to have a safety zone and that's the call, 
but it has got to be for safety reasons.
    Mr. Carter. OK. And that's just the point I'm trying to get 
at, is that, you know, it is a fine line. I mean, it is very 
difficult sometimes to judge that gray matter, if you will.
    Mr. Blum. I completely agree.
    Mr. Carter. OK. And then the other point that you made that 
I want to touch on was about the ``Miracle on the Hudson'' and 
the FAA was slow or hesitant to release the information because 
of--what reason did you say?
    Mr. Blum. Well, they cited one of these Exemption (3) 
statutes. Exemption (3) of FOIA says that, if there is some 
other law on the books somewhere that puts information behind a 
closed door, that FOIA wouldn't trump that. And that was in the 
original statute.
    And so they cited one of these that gives specific criteria 
to the agency to use. If disclosure would inhibit the security 
of aviation and other transportation, they cited that as a 
reason to not give out the data that they had voluntarily 
collected from various airports about wildlife strikes.
    Mr. Carter. OK. Well, let me interject at this point now. 
You know, I'm all in favor of freedom of information, and I 
want to make that clear.
    Mr. Sadler, I want to speak to you and your experiences 
with the FDA. And I'm assuming that you did more than just food 
products, that you did medications as well.
    Mr. Sadler. Yes, sir.
    Mr. Carter. OK. Well, I'm a pharmacist, and I want to ask 
you: Were there ever any inquiries that you had that you were 
hesitant to release some of the information for fear that it 
might create panic within the citizenry, especially as it 
relates to medications, that, you know, they might stop taking 
their medications, that, you know, we struggle with compliance 
as it is? Did you ever run across that?
    Mr. Sadler. No, sir. What I did find was that FOIA 
functioned well when it worked with our Public Affairs Office 
and Legislative Affairs Office. And in situations where we 
thought there might be public concern, we would create 
individual pages. And as documents were reviewed and redacted, 
they were automatically uploaded in a manner of proactive 
disclosure.
    And a perfect example would be when the Chinese growers 
were using a pesticide on wheat products that was banned in 
North America. That wheat product was then shipped in a 
contaminated form to Canada and converted into dog food in the 
United States. There were more than 40 different brands that 
were impacted.
    We issue bulletins, work with Public Affairs, created a 
page specifically to address that. We've done the same thing on 
issues of pediatric vaccines as it impacts on autism.
    Mr. Carter. Yes. You're touching on something that is good 
because vaccines came right to my mind whenever I was thinking 
this.
    Mr. Sadler. We had litigation against the agency that was 
more than a million pages at issue, which required bringing in 
multiple attorneys on contract.
    Part of the difficulty that we experienced--personal 
opinion--was that the attorneys were looking for long-term 
employment in permanent positions rather than as contractors 
and they bailed as soon as they could find an alternative 
employment, setting back the agency's ability to respond to 
litigation in a timely manner.
    The volume of requests is a problem. You can't remediate 
some of these things, particularly when you're dealing with 
truly old records and they are bad carbon copies.
    I think the agency has addressed public health issues quite 
well, and we do make available individuals to discuss these 
kinds of problems with the individuals, if they wish to pursue 
communication.
    Mr. Carter. I think I'm out of time, but thank you very 
much for----
    Mr. Sadler. May I add a parenthetical here?
    Mr. Carter. Sure.
    Mr. Sadler. And this is in response to a couple of 
different questions, and I apologize for going over time.
    But I think in the statute I'm hearing a conflict 
potentially between the functions that are dedicated to OGIS 
and the functions that are dedicated to the Department of 
Justice.
    I would suggest that there be a clear line in defining the 
functions and processes of these two groups. The Office of 
Information Policy and the Department of Justice is designated 
by statute as the arbiter of policy and interpretation, and 
OGIS is there to monitor, look for improvements, and then to 
work with the requester community for mediation.
    I think there is some commingling of these functions that's 
going on. And, if that happens, a FOIA officer could, in 
theory, theory, receive different responses to the same 
question. I would like to see a more definitive break between 
the two organizations.
    They work hand in glove. There is a highly cooperative 
relationship. They frequently do training together. My friend, 
Ms. Nisbet, is a long-term friend of the head of the OIP, Ms. 
Pustay. And we all get along well. But it is confusing 
sometimes to both the FOIA community and to the requester 
community as to where you go.
    Mr. Meadows. I thank the gentleman from Georgia. I thank 
you for your response. You're drawing the scenario that you all 
get along well. I want to come back and visit that. That is not 
what I'm hearing.
    So we're going to go to the gentleman from Wisconsin, Mr. 
Grothman.
    Mr. Grothman. Thanks much.
    For Mr. Blum, you have these--there are exemptions in 
Freedom of Information Act under what you call (b)(5).
    First of all, can you tell me about how often that that 
exemption it used.
    Mr. Blum. I'm sorry?
    Mr. Grothman. Can you tell me how often that exemption is 
used, the (b)(5) exemption.
    Mr. Blum. It is used--I believe it's thousands of times 
every year.
    Mr. Grothman. Are there any times where you think it is 
inappropriate? Like can you give any examples of where you 
think it is wrongly used?
    Mr. Blum. Well, the VA blocked the names--they declined to 
name hospitals where 19 veterans had died during delayed 
medical screening. The Bureau of Prisons refused to release 
names of companies that it had contracted to have access to 
prison labor and they used (b)(5).
    My understanding is the CIA claimed (b)(5) to withhold the 
history of the Bay of Pigs invasion. Again, I want to thank the 
National Security Archive, an independent group, for collecting 
these examples.
    The issue is not do people in government have the right to 
sit in a room and deliberate policy and come up with something 
that is good for the country. The issue is do they have the 
right to abuse that privilege. And we hope that what's in the 
bill will help stop that.
    Mr. Grothman. Ms. Nisbet, just a final comment from you.
    When I look at this area of the law, I see, you know, two 
problems, the one that we just kind of talked about in which 
agencies are either delaying--or not turning around requests 
quickly enough or denying requests, and the other problem is 
somebody who has been in government for a while. People can 
just pester you forever and you have to spend forever and ever 
responding to these requests on fishing expeditions and it just 
takes a tremendous amount of time.
    Could you give me, based upon your years of experience 
here, your suggestions for improvements in both these areas.
    Ms. Nisbet. Well, I think an improvement has already been 
introduced into the law with the 2007 amendment, which did 
create a chief FOIA officer, made statutory the position of 
FOIA public liaison, and created the FOIA ombudsman's office.
    I think with both delays and with problems of--let me just 
say maybe--frequent FOIA requesters is sometimes how they are 
referred to, people who just keep coming back and back and, in 
fact, maybe their issue is really not the FOIA, it is an 
underlying problem with the agency or with issues that the 
agency deals with.
    In both of those situations and other related procedural 
matters, having an office such as the FOIA public liaison or 
OGIS to be that neutral mediator to be able to sort of calm the 
parties down and bring them to a place where they can actually 
have a conversation or even a mediated conversation can really 
make a difference, and we have seen it more.
    Mr. Grothman. Thank you.
    I yield the rest of my time.
    Mr. Meadows. I thank the gentleman from Wisconsin.
    The chair recognizes the ranking member of the full 
committee, who over the years has talked about restoring trust, 
and that's a big item for Mr. Cummings.
    And so it is with great admiration that the chair 
recognizes Mr. Cummings, the gentleman from Maryland.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Mr. Blum, earlier this month Representative Issa and I 
introduced H.R. 653, the FOIA Oversight and Implementation Act. 
The bill codifies into law a presumption of openness. 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 a memo that 
directed agencies to administer FOIA with: ``a clear 
presumption, in the face of doubt, openness prevails.''
    Is that accurate, what I just said?
    Mr. Blum. Yes, sir.
    Mr. Cummings. OK. The bill requires that records be 
disclosed under FOIA unless agencies can demonstrate ``specific 
identifiable harm.'' In 2009, Attorney General Holder issued a 
memo instructing agencies that the Department of Justice will 
defend FOIA denials only if, one, an agency reasonably foresees 
that disclosure would harm an interest protected by one of the 
statutory exemptions or, two, disclosure is prohibited by law. 
Is that right?
    Mr. Blum. Yes.
    Mr. Cummings. Now, Mr. Blum, you said in your testimony 
that you agree with adding these provisions to the FOIA 
statute.
    Let me ask you this: If the agencies are already required 
to do this under the administration's policy, why is it 
important for Congress to pass these provisions into law?
    Mr. Blum. Well, I think it is very important to take the 6 
years' experience that agencies have had and put them into law 
to assure that that's the way, going forward--you know, in the 
next administration and in the next administration after that, 
that's the appropriate starting point.
    You start in our democracy with the presumption of openness 
unless there is a very specific reason for not being 
transparent. And so it is important, I think, for future 
generations to have this in law.
    Mr. Cummings. Last year the Department of Justice expressed 
some concern with this provision, suggesting that it might 
increase litigation and undermine the policy behind the 
exemptions. Mr. Obama's bill would just codify DOJ's own 
policy. Is that right?
    Mr. Blum. That is true. Yes. It would just codify the 
Justice Department's policy.
    Mr. Cummings. So I take it that you don't have similar 
concerns.
    Mr. Blum. I do not. I do know that very, very late in the 
last Congress some concerns were raised. But the issues that 
they had raised I just don't understand because there are 
already broad protections for some kinds of information that 
they were concerned about.
    Mr. Cummings. The committee has also heard from some 
independent agencies that the presumption of openness standard 
might impact the ability to withhold certain information.
    Specifically, the Office of Comptroller of the Currency, 
the Consumer Financial Protection Bureau, and the Federal Trade 
Commission suggested that the bill could impact their ability 
to obtain information when they conducted exams of institutions 
they regulate.
    They suggested that banks and other regulated-related 
entities would not have certainty that the information they 
provided would be protected.
    Mr. Blum, how do you respond to those concerns?
    Mr. Blum. Well, I really don't understand those concerns 
because Exemption (8) is already a category that protects 
financial information, Exemption (8), and it is very, very 
broadly interpreted as a very broad protective exemption.
    And it was clarified to ensure that the SEC's new 
authorities under Dodd-Frank, you know, could use Exemption 
(8). So I really think that there is very, very broad 
protections for this kind of information.
    Mr. Cummings. So is there any reason to believe that the 
information that an agency is legitimately withholding under 
Exemption (8) would lose its protection under the bill?
    Mr. Blum. I really don't think this bill would change that 
or have the kind of damaging impact.
    Mr. Cummings. Thank you very much, Mr. Chairman. I yield 
back.
    Mr. Meadows. I thank the gentlemen.
    The chair recognizes himself for a series of questions not 
to exceed 5 minutes.
    And I want to just say thank you. And before I go any 
further, I want to publicly thank the staff that has worked so 
diligently. They normally are not the ones that are speaking, 
but they are always the one who are doing the work. And so I 
want to recognize them and thank them for the work.
    Mr. Sadler, let me come to you. One of the quotations that 
I wrote down is you said there's a tendency to ``jump to 
litigation'' when you were talking about that. Why do you think 
that would be, Mr. Sadler?
    Mr. Sadler. Strictly personal opinion, sir, but I think 
that there is a belief or an understanding on the part of a 
small segment of the requester community that FOIA is being 
given less attention than it is.
    I don't think that these individuals necessarily understand 
the complexity of the implementation and they believe that they 
can then force production of records within a relatively short 
time.
    And, of course, one of the financial changes that was made 
is that, if an agency did not respond previously and then did 
during the course of litigation, the requester could ask the 
court to award attorney fees, which an agency would have to pay 
out of its operating fees. This could run into the hundreds of 
thousands of dollars.
    In bygone years, attorney fees would be handled by the 
Department of the Treasury from the Judgment Fund. That's no 
longer the case as of 2007. We've lost a couple of cases in my 
agency usually as a result of timeframes or volume or 
complexity, but we did have one case where we had to pay 
$246,000 out of operating funds.
    Mr. Meadows. So the complaints that we get from folks that 
Mr. Blum talks to, actually, people that have called me prior 
to this hearing, say that, on a number of occasions, they feel 
like they just get stonewalled, that what happens is the 
Freedom of Information officer may want to comply and all they 
are doing is coming back and saying, ``Well, we can't get the 
information,'' ``We can't get the information,'' ``We can't get 
the information.''
    Would you say that that is an accurate characterization 
of----
    Mr. Sadler. I think it has happened on occasion without 
question, sir.
    Mr. Meadows. Mr. Blum, would you agree with that?
    Mr. Blum. I would. The FOIA officer is the one trying to 
get the records out and having difficulty.
    Mr. Meadows. So we need to empower the FOIA officers how? I 
mean, because--are they handicapped?
    Mr. Blum. Well, I think the higher the attention within the 
agency to these problems, the better.
    Mr. Meadows. So if there is a problem, a memo needs to be 
sent to the ranking member so he can justify that?
    Mr. Blum. Well, I think having a performing metrics that an 
agency head or their deputy can look at to say, ``We have got a 
backlog in this office. Who else can pick up some slack?'' or, 
``Why are we not doing as well as we need to? Let's put some 
more resources help people like Mr. Sadler.''
    Those kinds of things can be very effective, and I think 
the bill tries to do some of that.
    Mr. Meadows. All right. Ms. Nisbet, how do we go about 
limiting the scope of a FOIA request where it is saying, you 
know, ``Please send me 100,000 copies so I can go through and 
do the research'' and make it much more--perhaps what I would 
say is a rapid response--if they will make it a much smaller 
request, they'd get a much quicker response, versus saying, 
``We have this broad brush we're going to stroke it with. And 
we'll comply with that, but that may take 12 months to comply 
with. If you will, narrow the scope in terms of your 
question?'' Is that something that's reasonable?
    Ms. Nisbet. It is very reasonable, and I think it is 
happening more and more. But that is precisely where you need 
the FOIA public liaison or OGIS to be able to have that 
conversation.
    In other words, you really need to have the requester and 
the FOIA office talking about what kind of records there are, 
what there might be, what could be gotten much more quickly, as 
you say.
    That also, Mr. Chairman, requires trust, and that's often 
lacking, I think, because, until recently, there has not been 
an alternative other than litigation. And so the parties become 
very adversarial.
    But as trust builds and as those conversations are held, it 
should work better. We have certainly seen that it works 
better.
    Mr. Meadows. So would you say that the agency that you used 
to head up as director--would it be better if they were 
empowered with more autonomy and more decisionmaking instead of 
having to go through OMB and some of the other areas to give 
that agency more independence and autonomy?
    Ms. Nisbet. Well, the ability to convene parties and to 
conduct mediation I think certainly is something that has 
worked well for OGIS.
    The independence, as one of its criteria or one of its 
abilities, certainly helps both with the mediation and, also, 
with the reviewing on compliance and reporting on compliance. 
So I think it helps in both respects.
    Mr. Meadows. I have exceeded my time. I'll certainly allow 
the ranking member to do--they have called votes. He can do a 
closing Statement, if he'd like. And then we'll finish up.
    But I would like to say that, if you have policy 
recommendations, the ranking member and I were discussing we 
would love to hear it and we consider this a priority and we 
will take action on that.
    So the chair recognizes the ranking member for a closing 
Statement.
    Mr. Connolly. Thank you, Mr. Chairman.
    Actually, I just want to piggyback on the point you were 
just making because, you know, sometimes when we talk about 
FOIA, it's good government, it's openness, it's sunshine, and 
we're just seeking the truth. And we have bureaucrats who are 
just stonewalling and not cooperating and, ``What's wrong with 
them?'' and, ``Why can't they get with the program?'' Well, 
it's not that simple.
    I was on the receiving end for 14 years of FOIA requests, 
as an elected official in local government, and often the scope 
of a FOIA was so broad that we didn't know what to do with it. 
You know, if I really responded to what you're literally asking 
for, we'd have to hire huge truckloads of documents to deliver 
them to you and it would take forever and lots of money.
    Can we work together on limiting the scope or being more 
precise in what it is you are really seeking? And I think 
that's another aspect of it because it is easy for someone to 
say, ``Well, I think you're stonewalling'' when the mistake is 
mine in not being more precise in the request. And, actually, 
it is not because of resistance. It's you trying to figure out 
what my request is really getting at.
    And so trying to narrow those differences I think is very 
important so that we do avoid unnecessary litigation and that 
we try to be more precise in the language of the law when it 
comes to scope.
    So thank you for bringing that up because I think that 
really is another dimension of this.
    And thank you to the panel for being here today.
    Mr. Meadows. So I'd like to thank the witnesses for taking 
the time to appear today.
    If there is no further business, without objection, the 
subcommittee stands adjourned.
    [Whereupon, at 10:32 a.m., the subcommittee was adjourned.]

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