[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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
___________
U.S. GOVERNMENT PUBLISHING OFFICE
94-348 PDF WASHINGTON : 2015
________________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected]
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.]
[all]