[Senate Hearing 114-882]
[From the U.S. Government Publishing Office]


                                                    S. Hrg. 114-882

                    ENSURING AN INFORMED CITIZENRY:
                     EXAMINING THE ADMINISTRATION'S
                   EFFORTS TO IMPROVE OPEN GOVERNMENT

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 6, 2015

                               __________

                           Serial No. J-114-15

                               __________

         Printed for the use of the Committee on the Judiciary
         
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                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont, Ranking 
JEFF SESSIONS, Alabama                   Member
LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

                Kolan L. Davis, Majority Staff Director
                Kristine Lucius, Minority Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                         MAY 6, 2015, 9:34 A.M.

                                                                   Page

                           MEMBER STATEMENTS

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     1
    prepared statement...........................................    77
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................    80

                               WITNESSES

Witness List.....................................................    31
Barr, Hon. Joyce A., Assistant Secretary, Bureau of 
  Administration, U.S. Department of State, Washington, DC.......     9
    prepared statement...........................................    46
Blanton, Thomas S. Blanton, National Security Archive, The George 
  Washington University, Washington, DC..........................    21
    prepared statement...........................................    63
Gramian, Nikki N., Acting Director, Office of Government 
  Information Services, National Archives and Records 
  Administration, College Park, Maryland.........................     7
    prepared statement...........................................    40
Kaiser, Karen, General Counsel, The Associated Press, New York, 
  New York.......................................................    20
    prepared statement...........................................    55
Pustay, Melanie Ann, Director, Office of Information Policy, U.S. 
  Department of Justice, Washington, DC..........................     5
    prepared statement...........................................    32

                               QUESTIONS

Questions submitted to Barr by:
    Senator Grassley.............................................    82
    Senator Leahy................................................    88
    Senator Tillis...............................................    90
Questions submitted to Blanton by:
    Senator Grassley.............................................    87
Questions submitted to Gramian by:
    Senator Grassley.............................................    85
Questions submitted to Kaiser by:
    Senator Grassley.............................................    86
Questions submitted to Pustay by:
    Senator Grassley.............................................    84
    Senator Leahy................................................    89

                                ANSWERS

Responses of Barr to questions submitted by:
    Senator Grassley.............................................    96
    Senator Tillis...............................................   118
    Senator Leahy................................................   126
    Senator Vitter...............................................   132
Responses of Gramian to questions submitted by:..................
    Senator Grassley.............................................   140
Responses of Kaiser to questions submitted by:...................
    Senator Grassley.............................................   144
Responses to questions submitted by:.............................
    Senator Vitter...............................................   147
Responses of Pastay to questions submitted by:...................
    Senator Grassley.............................................   148

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Submitted by Senator Grassley's Office:
    ARMA International Statement by Fred Pulzello................   154
    Information Governance Initiative Statement by Jason R. Baron   157


 
                    ENSURING AN INFORMED CITIZENRY:
                     EXAMINING THE ADMINISTRATION'S
                   EFFORTS TO IMPROVE OPEN GOVERNMENT

                              ----------                              


                         WEDNESDAY, MAY 6, 2015

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 9:34 a.m., Room 
226, Dirksen Senate Office Building, Hon. Charles E. Grassley, 
Chairman of the Committee, presiding.
    Present: Senators Cornyn, Tillis, Leahy, Klobuchar, and 
Franken.

 OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 
                     FROM THE STATE OF IOWA

    Chairman Grassley. Good morning. We are going to examine 
what this Administration has done to fulfill its promise of 
open government.
    President Obama began his presidency with assurances on 
transparency. As we do regularly, it is our opportunity to take 
stock of where things stand not only on FOIA, but throughout 
the year we do this several times on other issues.
    There is perhaps no better tool that Americans have to help 
ensure open government than FOIA. Enacted almost 5 decades ago, 
the purpose of the law is to help keep folks in the know about 
what the government is doing. No doubt an informed public helps 
to guarantee a more accountable government.
    The Judiciary Committee has a long and bipartisan history 
of helping protect the public's right to know and ensuring that 
government effectively administers FOIA.
    Earlier this year the Committee reported the FOIA 
Improvement Act of 2015 to the full Senate for consideration. 
The bill codifies the, quote-unquote, ``presumption of 
openness'' standard so that agencies proactively disclose more 
information. Among other reforms, the bill makes it easier for 
the public to submit FOIA requests and improves the electronic 
access to records.
    As many of you know, Ranking Member Leahy and Senator 
Cornyn have been FOIA leaders for many years and I appreciate 
the hard work that they put into this bill, and I happen to be 
a cosponsor.
    Last year, thanks to their efforts, the Senate passed an 
almost identical bill by unanimous consent, and, of course, in 
the Senate, that is not an easy task. Unfortunately, we ran out 
of time at the end of the year and were unable to get the bill 
to the President's desk. I am hopeful--hopeful that will not be 
the case this year and that the Senate will soon pass 
meaningful and much needed reforms.
    Legislative reforms can only go so far. Experience shows 
that many in government continue to operate with an instinct of 
secrecy. This has been the case under both Democrat and 
Republican Administrations, as both have failed up to live to 
the letter and, more importantly, the spirit of FOIA.
    President Obama gave me high hopes for the change in the 
status quo. He pledged, quote, ``a new era of open 
government,'' end of quote, one where transparency is the rule 
and not the exception. On his first full day in office, the 
President called for agencies to administer FOIA, quote, ``with 
a clear presumption, in the face of doubt, openness prevails,'' 
end of quote.
    Unfortunately, over 6 years later, we continue to see this 
Administration operating under a do-as-I-say-and-not-as-I-do 
approach to transparency, similar to previous Republican and 
Democrat Administrations.
    Recently, the Office of Information Policy Director Melanie 
Pustay, who is with us here today and a senior White House 
official, wrote in USA Today that the Administration, quote, 
``continues to demonstrate its commitments to improving open 
government and transparency,'' end of quote.
    The very next day, ironically, the first day of Sunshine 
Week, the White House announced it was removing regulations 
that for 35 years had subjected its Office of Administration to 
FOIA requests. According to the White House, this decision is 
consistent with court decisions holding that the office is not 
subject to FOIA.
    As one open government advocate put it, quote, ``You have a 
President who comes in and says `I am committed to transparency 
and agencies should make discretionary disclosures whenever 
possible,' but he is not applying it to his own White House,'' 
end of quote.
    This is just one of many examples that lead me to question 
the President's declaration that his Administration is the most 
transparent in history, which was my expectation. Again, I want 
to be fair to this President. If he goes by what every other 
President has done, both Republicans and Democrats have these 
shortcomings.
    The numbers, I think, also speak for themselves. The Center 
for Effective Government recently released its annual Access to 
Information Scorecard, which grades Federal agencies' FOIA 
performances. While there were some glimmers of hope, the 
overall results indicate there is much room for improvement.
    I am particularly concerned with the State Department's 
FOIA operation. According to Scorecard, the State Department 
processed only 17 percent of FOIA requests it received in 2013. 
For the second year in a row, the State Department was the 
lowest scoring agency by far, with performance that was, quote, 
``completely out of line with other agencies.''
    These results seem to confirm an ongoing issue with the 
State Department's ability to manage agency information and 
process FOIA requests.
    In 2012, State Office of Inspector General issued a report 
concluding that, quote, ``The Department's FOIA process is 
inefficient and ineffective'' and that its records management 
practices, quote, ``do not meet statutory and regulatory 
requirements,'' end of quote.
    Just recently the IG released another report outlining 
State Department's failure to properly archive e-mails as 
official records. Out of over 1 billion e-mails sent by agency 
employees in 2011, just over 61,000 of those were properly 
archived. It is impossible not to acknowledge that former 
Secretary Clinton's exclusive use of a private e-mail account 
to conduct official policy--exclusive use of private email 
account conduct of official State Department Business.
    According to Jason Baron, the former Director of Litigation 
and National Archives and Records, quote, ``A Federal employee 
or official choosing to carry out communications using non-
dot.gov address, without making timely transfer of those 
records to an appropriate governmental system, compromises the 
ability of an agency to adequately respond to FOIA requests.''
    No doubt these failures undermine FOIA and have serious 
consequences for our oversight and for documenting U.S. 
diplomatic history. As Secretary Kerry acknowledged, the 
preservation of records and the public's access to those 
records are, quote-unquote, ``interrelated principles.''
    I agree. After all, if a record cannot be found, it cannot 
be disclosed.
    I want to know where the breakdowns occur. I want to hear 
what State Department has done and plans to do to address these 
serious concerns.
    Further, is this an isolated incident? If not, then how 
widespread are these issues and what can be done to turn the 
tide?
    Finally, I want to know what steps the Administration is 
taking to ensure the public's right to know, which the 
President himself said is central to, quote, ``the effective 
functioning of our constitutional democracy,'' end of quote.
    These, along with many others, are important questions that 
need to be answered and I am glad to have today's hearing. I am 
looking forward to hearing from our witnesses today who I am 
sure can shed quite a bit of light on these matters.
    I want to thank all for being here today.
    [The prepared statement of Chairman Grassley appears as a 
submission for the record]
    Chairman Grassley. I now turn to my friend, Senator Leahy, 
for his remarks.

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

    Senator Leahy. Thank you, Mr. Chairman.
    This is an important hearing on one of our most cherished 
open government laws, the Freedom of Information Act, FOIA. For 
nearly half a century, FOIA has taken our great American values 
of openness and accountability and put them into practice by 
guaranteeing access to government information.
    This Committee, as the Chairman noted, has a long tradition 
of working across the aisle when it comes to protecting the 
public's right to know. We have done this during both 
Democratic and Republican Administrations.
    Senator Grassley and Senator Cornyn have been important 
partners in these efforts and our collaboration the three of us 
working together with others, has resulted in enactment of 
several improvements to FOIA, including the OPEN Government 
Act, the OPEN FOIA Act.
    We are moving in the right direction. That is the good 
news. The bad news is obstacles to the FOIA process remain in 
place and progress has come much too slowly.
    For the second year in a row, the Center for Effective 
Government graded the responsiveness of 15 Federal agencies 
that process most of the FOIA requests. Some agencies did show 
improvement from last year, but the results are disappointing.
    Not a single agency received an A grade. Only two agencies 
received a B grade. The rest fell below a C. We have to do 
better than this. Two agencies, including the State Department, 
testifying before us today, received a failing grade for the 
handling of FOIA requests.
    According to the report, only 7 percent of FOIA requests 
the State Department received were responded to within the 20 
days required, 7 percent. The State Department denied FOIA 
requests in their entirety almost 50 percent of the time.
    I do not know how anybody could find that acceptable. I 
recognize the number of FOIA requests has increased over the 
years, but that is not a reason to fall down on the job.
    If we need more resources, then ask for them. I am on the 
Appropriations Committee. I will vote for more resources for 
answering FOIA requests. You are not going to solve it by money 
alone. We have to fundamentally change the way we think about 
FOIA.
    Our very democracy is based on the idea that our government 
should not operate in secret and we should embrace that. While 
it is not always popular, transparency is fundamental to the 
values on which our country was founded.
    That is why I worked with Senator Cornyn to craft the FOIA 
Improvement Act of 2015. Both Senator Cornyn and I said at the 
time we want this--the strongest act possible, whether it is a 
Democratic or Republican Administration, because no matter 
which party is in control, they will want to tout their 
successes, but they are usually pretty reluctant to talk about 
any failures.
    Ours is a comprehensive bill. It will codify what President 
Obama laid out in his historic 2009 memorandum requiring 
Federal agencies to adopt a presumption of openness when 
considering the release of information under FOIA.
    This policy was first put into place by President Clinton. 
It was repealed by President Bush, and President Obama 
reinstated it. It was one of his first acts in office.
    By codifying the presumption of openness, Congress can 
establish a transparency standard that will remain for future 
Administrations of either party and agencies to follow. It 
embodies the very spirit of FOIA. If fully complied with, it 
would do more to improve the effectiveness of FOIA than any 
other reform.
    I hope we can pass the FOIA Improvement Act without further 
delay. It had the unanimous support of the Judiciary Committee 
in February. It is nearly identical to legislation which was 
passed by the full Senate last year.
    There are no objections on the Democratic side to move 
forward with this legislation. I hope we can bring it before 
the full Senate for consideration and we can pass this 
important bill.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Leahy appears as a 
submission for the record]
    Chairman Grassley. A couple of housekeeping things before I 
introduce the panel. After I ask my questions, I am going to 
turn the gavel over to Senator Cornyn to finish the meeting. I 
have letters that were submitted on behalf of Information 
Governance Initiative, as well as ARMA International, which I 
would ask unanimous consent to be included in the record.
    [The letters referred to follow as a submission for the 
record]
    Chairman Grassley. As always, the record will remain open 1 
week for the submission of written questions for either one of 
our panelists, any of our panelists, and other material that 
people want to put in.
    Senator Leahy. Mr. Chairman, I would ask consent, because I 
will not be here, that my questions be introduced for the 
record and that the witnesses be requested to answer them.
    Chairman Grassley. Yes. Please respond to all the 
questions, but particularly to the Ranking Member, because he 
is a leader in this area of openness in government.
    Our first witness, Melanie Pustay, Director, Office of 
Information Policy, Justice Department. Her office has 
statutory responsibility for directing agency compliance with 
FOIA. Before becoming director, she served 8 years as deputy 
director and has worked extensively on open government issues 
with government officials.
    Nikki Gramian is Acting Director of the Office of 
Government Information Services, the Federal FOIA ombudsman 
office. She joined the office after 7 years at the Department 
of Homeland Security IG, where she supervised a FOIA team that 
processed many sensitive, high visibility requests.
    Joyce Barr is State Department's Assistant Secretary for 
Administration, as well as Chief FOIA Officer. As Assistant 
Secretary, she is responsible for the day-to-day administration 
of various functions ranging from logistics to records 
management and privacy programs. She has been a member of the 
Foreign Service for over 35 years, serving in posts around the 
world, including U.S. Ambassador to the Republic of Namibia.
    Welcome and thank you for all being here today. You will 
each have 5 minutes to make your opening statement and, of 
course, your complete written testimony will be included in the 
record.
    I am going to go in the order of Ms. Pustay, Ms. Gramian, 
and then Ms. Barr. Would you proceed, please?

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

    Ms. Pustay. Thank you. Good morning, Chairman Grassley and 
Ranking Member Leahy and members of the Committee.
    I am pleased to be here today to discuss the FOIA and the 
Department of Justice's ongoing efforts to encourage agency 
compliance with this very important law.
    There are several areas of success that I would like to 
highlight today. Despite receiving continued record high 
numbers of FOIA requests and operating at the lowest staffing 
levels in the past 6 fiscal years, agencies have continued to 
find ways to improve their FOIA administration. Seventy-two out 
of 100 agencies subject to the FOIA ended Fiscal Year 2014 with 
low backlogs of fewer than 100 requests.
    Processing nearly 650,000 requests, the government also 
continued to maintain a high release rate of over 91 percent. 
Agencies overall also continue to improve processing times.
    OIP has for a number of years encouraged agencies to focus 
on their simple track requests, with the goal of processing 
them within an average of 20 working days. I am pleased to 
report that this past fiscal year, the government's overall 
average was 20.5 days for these requests.
    There are also many achievements that are not easily 
captured by statistics. Agencies continue to proactively post a 
wide variety of information online in open formats. They are 
making discretionary releases of otherwise exempt information, 
and they are utilizing technology to improve FOIA 
administration.
    The Department of Justice continued to work diligently 
throughout the year to both encourage and assist agencies in 
their compliance with the FOIA. I firmly believe that it is 
vital that FOIA professionals have a complete understanding of 
the law's legal requirements and the many policy considerations 
that contribute to successful FOIA administration. As a result, 
one of the primary ways that my office encourages compliance 
with the FOIA is through the offering of a range of government-
wide training programs and the issuance of policy guidance.
    In 2014 alone, my office provided training to thousands of 
individuals through a variety of programs. In addition, we 
issued guidance on a range of topics, including comprehensive 
guidance on the FOIA's proactive disclosure provisions. That 
guidance includes strategies for identifying frequently 
requested records and encourages agencies to post records even 
before receipt of a single request in accordance with the 
President's and Attorney General's FOIA directives.
    I am also particularly pleased to highlight for you today 
the substantial progress that we have made on a number of 
initiatives to modernize the FOIA. First, in collaboration with 
the 18F Team at GSA, we have been working on the creation of a 
consolidated online FOIA service to be added to the resources 
that are available on FOIA.gov. This consolidated service will 
allow the public to make a request to any agency from a single 
website and will include additional tools to improve the 
customer experience.
    Second, OIP has been working on the potential content of a 
core FOIA regulation. We formed an interagency task force to 
tackle this project. We have met with civil society 
organizations to get their input and our team is now hard at 
work drafting initial language. We look forward to continuing 
our engagement with both civil society and our agency 
colleagues as we all collaborate on that project.
    Third, in an effort to improve internal agency practices, 
OIP launched a new series of best practices workshops starting 
with the important topic of improving timeliness and reducing 
FOIA backlogs. These workshops provide a unique opportunity for 
agencies to learn from one another and to apply innovative 
solutions more broadly across the government.
    Finally, just this past March, we completed our commitment 
to enhance FOIA training by making standard e-learning 
resources available to all Federal employees. Embracing 
Attorney General Holder's message that "FOIA is everyone's 
responsibility", these new training resources target the entire 
spectrum of Federal employees, from the newly arrived intern to 
the senior executive.
    These training resources are available to all agency 
personnel anywhere in the world and at no charge. They address 
the FOIA's many procedural and substantive requirements and 
they also emphasize the importance of good communication and 
good customer service.
    Given how important training is to successful 
implementation of FOIA, I am particularly proud that OIP was 
able to provide these resources to all government employees.
    In closing, in the face of many challenges this past fiscal 
year, agencies have achieved success in many areas. Still there 
is more work to be done and we will continue our efforts to 
encourage and assist agencies going forward.
    We look forward to working with the Committee on these 
important matters. Thank you.
    [The prepared statement of Ms. Pustay appears as a 
submission for the record]
    Chairman Grassley. Thank you, Ms. Pustay.
    We will hear from Ms. Gramian.

   STATEMENT OF NIKKI N. GRAMIAN, ACTING DIRECTOR, OFFICE OF 
GOVERNMENT INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS 
             ADMINISTRATION, COLLEGE PARK, MARYLAND

    Ms. Gramian. Good morning, Mr. Chairman, Ranking Member 
Leahy and members of the Committee. I am Nikki Gramian, Acting 
Director of the Office of Government Information Services, 
known as OGIS, a component of the National Archives and Records 
Administration, known as NARA.
    As acting director, it is my great honor to appear before 
you to share our observations on the current State of the 
Freedom of Information Act and update you on OGIS' activities.
    It has long been OGIS' observation that access to records 
under the FOIA is linked to and greatly enhanced by good 
records management. OGIS recognizes that when an agency 
achieves excellence in records management, FOIA and records 
management programs succeed.
    Linking improvements to the FOIA with improvements in 
records management programs is an OGIS best practice.
    I am pleased to also share that since OGIS' last appearance 
before this Committee, NARA has hired two additional OGIS staff 
members to work on our review mission. The review team members 
are now on board and in Fiscal Year 2014, OGIS launched a 
formal agency assessment program. This program will assess 
individual agency FOIA programs by reviewing the agency's FOIA 
regulations, Website, and FOIA request files.
    In addition, the program will survey and conduct onsite 
interviews with agency FOIA professionals and produce a report 
at the conclusion of each agency assessment.
    OGIS' assessment reports are not designed to provide 
grades, rankings or include a comprehensive tally of every 
aspect of the agency's FOIA program. Rather, the reports are 
intended to provide thoughtful and practical analysis in a 
readable and useful format.
    Since its establishment, the review team has completed 
reviews of two of NARA's FOIA programs. Reviews are currently 
underway of six components of the Department of Homeland 
Security. We are very excited about this robust new review 
framework.
    As shared in our 2014 testimony before this Committee, OGIS 
is working closely with the Department of Justice and the 
Administration to implement the five FOIA-related commitments 
included in the second Open Government National Action Plan. 
Specifically, OGIS, with the support and guidance of NARA, is 
supporting the FOIA Advisory Committee.
    In May 2014, the Archivist of the United States, David 
Ferriero, appointed 20 members to the FOIA Advisory Committee. 
The members are split evenly between those who work within the 
government and those who do not.
    The advisory committee is looking at what FOIA oversight 
mechanisms currently exist. In addition, the committee is 
identifying the barriers to proactive disclosure and studying 
how agencies can use data about FOIA requests to improve 
proactive disclosure practices.
    Finally, the committee is discussing whether and how to 
reform the methods by which agencies assess fees in the FOIA 
process.
    Although we do not have newer recommendations to share at 
this time, I want to update you on our continued work.
    OGIS continues to request that agencies update their system 
of records notices, known as SORNS, to include routine uses 
that allow OGIS and the agency to discuss and share information 
about an individual's FOIA request. Currently, the absence of 
an appropriate routine use creates a logistical challenge for 
our review work and our capacity to provide efficient and 
effective mediation services.
    During an agency assessment, our review team will evaluate 
a sample of agency FOIA case files against the FOIA's 
requirements and the selected DOJ and OGIS best practices. If 
the agency has updated its SORNS to include a routine use for 
the disclosure of records to OGIS, the agency is permitted to 
share case files without taking additional steps.
    However, the absence of an appropriate routine use requires 
additional administrative steps OGIS and the agency must take 
to share information.
    In addition, in the course of our mediation work, when an 
appropriate routine use is not available, our practice is to 
seek the individual's consent to allow OGIS and the agency to 
share information. However, it can be an obstacle when an 
agency is seeking our assistance with a requestor with whom 
communications have broken down.
    Finally, I would like to inform you that OGIS' additional 
activities in the last year are outlined in our annual report 
and written testimony.
    I appreciate the opportunity to appear before this 
Committee and thank you for your support that you have shown to 
the Office of Government Information Services.
    [The prepared statement of Ms. Gramian appears as a 
submission for the record]
    Chairman Grassley. Thank you, Ms. Gramian. Now, Ms. Barr.

STATEMENT OF HON. JOYCE A. BARR, ASSISTANT SECRETARY, BUREAU OF 
    ADMINISTRATION, U.S. DEPARTMENT OF STATE, WASHINGTON, DC

    Ms. Barr. Chairman Grassley, Ranking Member Leahy, and 
members of the Committee, good morning.
    Thank you for the invitation to appear before you today and 
for your advocacy for improving transparency to the public.
    I am Joyce Barr. I serve as Assistant Secretary for 
Administration, as well as Chief FOIA Officer, for the 
Department of State.
    Part of my current mission is to respond to requests under 
FOIA, as well as to manage and maintain official records at the 
State Department. The State Department is committed to 
openness. It is critical to ensuring the public trust, as well 
as to promoting public participation in and collaboration with 
the U.S. Government.
    Meeting our commitment to openness is very challenging. We 
currently face a large backlog of over 18,000 FOIA requests. We 
know this is unacceptable and are working to reduce it.
    In the past year, we achieved a nearly 17 percent reduction 
in our backlog of initial requests and nearly 23 percent 
reduction in our appeals backlog by streamlining case 
processing. We made progress, but more is needed.
    There are several reasons for the backlog. Since 2008, our 
caseload increased over 300 percent. In Fiscal Year 2008, the 
State Department received fewer than 6,000 new FOIA requests. 
Fiscal year 2014, we received nearly 20,000. Since the 
beginning of this fiscal year, we have already received nearly 
14,000 new requests.
    Many of these cases are increasingly complex. The State 
Department is often the public's main destination for 
information and documents related to national security issues. 
Other national security agencies are partially, if not 
completely exempt from the FOIA. As a result, requesters often 
come only to the department to request information on any and 
all national security issues.
    These complex requests require multiple searches throughout 
many of our 275 missions around the world. They involve the 
review of classified material or highly sensitive material, and 
we must coordinate with other Federal agencies.
    They generate large volumes of paper and electronic 
materials that must be reviewed by State and interagency 
subject matters across the Federal Government.
    We get a lot of complaints about delays and our goal is to 
do everything we can to complete each request as quickly as 
possible with as much information as possible.
    You may already know that Secretary Kerry reinforced this 
point in his March letter to our Inspector General. In that 
letter, as you acknowledged, Mr. Chairman, the Secretary 
explained that he recognized the work that has been done and 
that the Department is already acting on a number of challenges 
to meet its preservation and transparency obligation.
    He has asked the IG to review and ensure that we are doing 
everything we can to improve and to recommend concrete steps 
that we can take to do so.
    I am here as the Department's senior FOIA official to 
assure you that we are committed to working cooperatively with 
the IG and any recommendations that may follow.
    My testimony for the record includes information about 
related issues, like our FOIA Website and Presidential 
libraries.
    Again, the Department of State is committed to public 
access to information.
    Mr. Chairman, I thank the Committee for the opportunity to 
testify today and would be pleased to address questions that 
you or any other member of the Committee may have on FOIA 
within the State Department.
    Thank you.
    [The prepared statement of Ms. Barr appears as a submission 
for the record]
    Chairman Grassley. Thanks to each of you, especially for 
keeping within your allotted time. It helps us manage time 
better here. I appreciate it very much.
    I am going to start with you, Ms. Barr. I think I need to 
emphasize that we are talking about the State Department. This 
is a governmentwide problem. It just happens that maybe things 
are a little more obvious in the State Department of changes 
needed to be made for FOIA.
    The 2012 IG report concluded that the State Department's 
FOIA process is, quote, ``inefficient and ineffective.'' The 
same report concluded that its records management practices, 
quote, ``do not meet statutory and regulatory requirements,'' 
end of quote.
    The report cites a lack of oversight, performance 
monitoring and enforcement. Because of these failures, a 
substantial number employees' e-mails were not being properly 
recorded.
    I am afraid the problems have not been resolved. We now 
have a subsequent IG report released this March showing 
continued problems in the State records management operation, 
with only a tiny fraction of employees' e-mails being properly 
recorded in the archiving system.
    My question to you. Why has there apparently been no 
improvement in the State records management operation since 
that 2012 IG report? And maybe more importantly, then leading 
into my second and third questions, were any actions taken 
after the 2012 report to improve oversight, performance and 
compliance with the recordkeeping obligations? If so, then 
why--if those things did take place, why did they fail to 
resolve the issues?
    Ms. Barr. Thank you for that question. When that OIG 
inspection started, I had been on the job for less than 6 
months and it was one of the first major issues that I had to 
face.
    It was very difficult for me to read that report and find 
out that I had a serious problem in that section. I took a 
number of actions. I made it a priority. I met with the team. I 
looked at what the staffing and what the resources were. At 
that time, I was able to provide more people to help in that 
section.
    One of the other issues that we had is that we had a lot of 
vacancies in key positions. I made sure that that was taken 
care of and, in fact, right after the report--we got the first 
draft of the report, we had hired an absolutely fantastic 
director that made a huge difference in how we operated.
    We implemented more training. We tried to improve lines of 
communication because it had been brought to our attention that 
there was a morale problem in the section. That was a priority 
with me and I made sure that supervisors had proper training, 
that they made sure that they provided good guidance for their 
subordinates.
    Now, part of what we tried to accomplish in this section is 
responding quickly and appropriately when we get these FOIA 
requests in and we have done--I think we have made great 
strides. Most of the recommendations have been closed to the 
satisfaction of the IG and we continue to work with them on 
that.
    There are a couple of things that have made it difficult 
for us to completely resolve some of our problems with keeping 
up. As noted in the testimony by my colleague in the Department 
of Justice, our requests have continued to skyrocket. We have 
over 18,000 requests that we processed in 2014, but things keep 
rolling in while we are trying to get on top of it.
    This type of work is very exacting. When we get a request 
in, it is not just our individual review, but making sure that 
we task that out to all of our embassies, to different bureaus 
within the State Department, that we get responses and good 
materials back. We review it again, perhaps send it out again 
through the interagency. Then it comes back for release.
    While we have gotten better at streamlining and training 
and being responsive, more work has come in.
    With regard to the second OIG report that you are referring 
to, we are working on responses to that right now and those are 
not yet complete and I do not have a detailed response for you.
    I would not say that we have done nothing. I would say that 
we are better, but we need to further improve to really get on 
top of that and that is one of the reasons we are working 
closely with the Department of Justice, as well as NARA, to not 
only improve our individual systems, but to be part of a 
governmentwide response to address some of the things that you 
said earlier about the public needing and wanting more 
transparency.
    Chairman Grassley. Senator Cornyn. I will leave you here to 
take charge. Maybe there are a couple of questions I was going 
to ask you can ask for me.
    Senator Cornyn. Sure.
    Chairman Grassley. Thank you.
    Senator Cornyn [presiding].
    Thank you, Mr. Chairman. Thanks for convening this hearing 
today. Thank you, to all of the witnesses, for being here.
    I think this is a critical hearing. I wish we gave this the 
sort of attention that I think it deserves. There is this idea 
out there that the Freedom of Information Act is something we 
do for the press. That is a fundamentally flawed way to look at 
it, from my perspective.
    This is about the public's information that was generated 
by people who work for the government and information that was 
generated by their tax dollars. I believe there should be a 
presumption that the information that is held by the U.S. 
Government should be open and accessible to the public.
    I certainly understand the sensitivity of some of the 
information you mentioned, for example, Ms. Barr, and the 
importance of going through that to make sure that the 
sensitive, classified and other sensi--other information is 
preserved.
    I just do not understand why we should tolerate the poor 
record of response by agencies like the State Department. I 
respect the job you are trying to do, Ms. Barr, and it sounds 
like you are understaffed and under-resourced. But the 37 out 
of 100 that the State Department has gotten on your Scorecard 
for FOIA is an embarrassing failure of the agency and I do not 
know how we could call it anything different.
    What really bothers me is when people plan in a 
premeditated and deliberate sort of way to avoid the Freedom of 
Information Act and Federal Government Requirements that 
require them to make public information available to the 
public. Of course, we are all familiar with the news accounts 
of what happened with former Secretary Clinton.
    Ms. Barr, did either you or Under Secretary for Management 
Patrick Kennedy know that Secretary Clinton was operating 
exclusively on a personal and private e-mail server?
    Ms. Barr. I have no information on that, sir. I was not 
aware of that.
    Chairman Cornyn. Are you aware of anybody else in the U.S. 
Government who is operating on a private, personal e-mail 
server in a way that defeats the very purpose of our freedom of 
information laws? Are you aware of anybody else who is 
operating in such a manner?
    Ms. Barr. I am not personally aware of that, sir.
    Chairman Cornyn. Prior to the recent return--and I think 
that was in 2014, October 2014--of some of Secretary Clinton's 
official e-mails, how did the State Department process Freedom 
of Information requests for information that was held by 
Secretary Clinton?
    Ms. Barr. As I mentioned earlier, we get thousands of 
requests and we process them--we have a specific protocol for 
processing them.
    The e-mail is not the only way we capture information about 
what the Secretary does. We have documents that are in the form 
of memos, briefings, agendas, et cetera, that are also----
    Chairman Cornyn. Would you actually call Secretary Clinton 
and say there has been a request under the Freedom of 
Information Law and do you have any documents that are 
responsive to that?
    Ms. Barr. What we do is when a process comes in, we task, 
first, ourselves in the department for information that might 
be applicable.
    Chairman Cornyn. I am asking how would you access the 
private e-mail?
    Ms. Barr. Because we have other archive systems, like 
Everest, where we process all of the paper. If the Secretary is 
going on a trip and we have asked people to provide documents 
and background information for that trip, we collect it in that 
system, and that is----
    Chairman Cornyn. I understand that. I am asking about her 
e-mails on her personal e-mail server. How would you access 
that?
    Ms. Barr. We have them now, sir.
    Chairman Cornyn. In response to a Freedom of Information 
request.
    Ms. Barr. We have them now, sir.
    Chairman Cornyn. Do you have all of them?
    Ms. Barr. We have the e-mails that she has released to us, 
all of the official ones.
    Chairman Cornyn. Do you know what percentage that 
represents of all the e-mails she has on her server?
    Ms. Barr. No, I do not.
    Chairman Cornyn. You do not have any way of verifying that 
you have all of the official e-mails that she processed on her 
personal e-mail account.
    Ms. Barr. We have been told that she has provided those to 
us.
    Chairman Cornyn. Who told you that?
    Ms. Barr. The Secretary.
    Chairman Cornyn. You are taking her word for it. I am 
sorry, yes?
    Ms. Barr. [Nodded head] Yes, sir.
    Chairman Cornyn. My time is up, but maybe we can get a 
chance to do another round since it is just Senator Tillis and 
myself.
    Senator Tillis. Senator Cornyn, continue with this line of 
questions, if you want.
    Chairman Cornyn. Thank you very much. Ms. Barr, I 
understand it was not until October 2014 when the first attempt 
to retrieve the official e-mails was made by the State 
Department. Can you verify that date, October 2014?
    Ms. Barr. Could you give me some context to that, sir?
    Chairman Cornyn. I would just cite news reports because 
that is the only source of my information. I am just asking you 
to verify it, if you can. According to news reports, the State 
Department did not request return of official records 
maintained by Secretary Clinton on her private account until 
October 2014.
    Can you verify those reports in the news?
    Ms. Barr. I know that we actually asked four former 
Secretaries of State for their e-mail records.
    Chairman Cornyn. I am talking about Secretary Clinton.
    Ms. Barr. Yes. We did send a letter last year asking for 
those e-mails.
    Chairman Cornyn. Was that the first request that you, as 
the Chief Freedom of Information Officer at the State 
Department, had made to her for these private e-mails?
    Ms. Barr. As far as I am aware, sir, yes.
    Chairman Cornyn. That is the first time. Why did the agency 
wait nearly 2 years after Secretary Clinton left office to 
first request those official e-mail records?
    Ms. Barr. Well, sir, I do not have specific information on 
that, but I can say that the Secretary has asked the Inspector 
General to review that and I hope that through that review we 
will find out more information that can give us--inform us as 
to what we should have done, what happened, and from that take 
lessons to make sure that records about the Secretary do not 
get separated from the larger collection at the department.
    Chairman Cornyn. Is Secretary Clinton going to make 
available to the Inspector General all of the e-mails that were 
collected on her private e-mail server so the Inspector General 
can objectively look at them and decide whether Secretary 
Clinton's separation of official from personal e-mails is 
indeed accurate and correct?
    Ms. Barr. I am not really privy to how the Inspector 
General is shaping his investigation.
    Chairman Cornyn. Do you know how Secretary Clinton provided 
for security of this information? We are all well-aware that 
cyber attacks are rampant and some State sponsors of cyber 
attempts to steal information that is both sensitive 
intelligence and other information that presumably would be on 
Secretary Clinton's e-mail server. Are you aware of any 
attempts to secure that server in a way that would protect that 
information from cyber criminals and intelligence efforts by 
our adversaries?
    Ms. Barr. No, I do not have information.
    Chairman Cornyn. Would that concern you?
    Ms. Barr. Perhaps.
    Chairman Cornyn. Perhaps. I would hope it would concern all 
of us, because as you point out, the Department of State has 
access to very sensitive information and, of course, as a 
member of the President's Cabinet, presumably even information 
from other Cabinet members, maybe communication from the 
President himself would be subjected to theft by cyber 
criminals, and we know there are State sponsors of that sort of 
activity that would love to learn the innermost deliberations 
and communications of the President with his Cabinet.
    That would concern you--you say perhaps and I will just 
tell you it concerns me a lot.
    Are you concerned--and I will conclude on this and turn it 
over to Senator Tillis for now--that there would be a 
premeditated and deliberate attempt by a member--by a high 
level official in the U.S. Government to set up a personal e-
mail system in a way that would circumvent all of the laws that 
Congress has passed to enforce the public's right to know, 
including the Freedom of Information laws? Does that concern 
you?
    Ms. Barr. I just want to paraphrase. You are asking me if I 
would be concerned if a Cabinet member deliberately set up an 
e-mail account to circumvent the laws.
    Chairman Cornyn. That is correct.
    Ms. Barr. In theory, yes.
    Chairman Cornyn. In theory.
    Ms. Barr. Yes.
    Chairman Cornyn. Senator Tillis?
    Senator Tillis. Thank you, Senator Cornyn.
    Ms. Gramian, I want to start with you and go back to some 
of the foundational problems we seem to have in terms of 
recordkeeping. I think the Inspector General just this year 
indicated that there were some billion e-mails sent by agency 
employees, but only about 61,000 of them were properly 
archived.
    Back early in my career, I worked in records management and 
did record scheduling, retention scheduling, identifying 
classifications of documents, and making sure that they were 
properly maintained and disposed of. If you are not the right 
person to answer this question, anyone else can chime in.
    How on earth could we have a records management operation 
in one of the most important areas of government seem to be so 
bush league? I mean, this just does not happen in the private 
sector where critical records are actually maintained, 
categorized and managed proactively. It seems like they are 
void of that.
    Am I missing it? How do you get the variable between 1 
billion and 61,000 and think that someone is confident in 
managing the records retention programs?
    I kind of poisoned the well with the question.
    Ms. Gramian. As you correctly stated, sir, I am not the 
right person. But I know that part of NARA is looking into this 
issue and the Archivist of the United States has previously 
testified about the problems with e-mail.
    Senator Tillis. To me, the reason I directed the question 
to you, being associated with OGIS, is that there are a lot of 
tools available to make this archiving almost as seamless and 
as automatic as possible.
    Either there was a conscious decision not to use the tools 
that they should have available or the people that were in 
charge had no idea what they were doing and what tools were 
available.
    From an IT perspective, why on earth would these not have 
been a part of an automated program for retention and 
disposition within whatever the retention schedule should have 
been for certain classifications of documents on e-mail?
    Ms. Gramian. I know that the National Archives is leading 
on the capstone program and in 2016, I believe all agencies are 
required to be in line with this particular situation.
    I do not have the answer for that, but I am happy to obtain 
the additional information you request.
    Senator Tillis. Thank you. This is for anyone on the panel. 
Are there any policies in place that say that you really should 
not be consolidating your records that you create in the normal 
course of business of doing your job on a private server where 
you are responsible for the retention and security of it? Do we 
have any specific policies that were violated as a result of 
this or do we need to pardon these policies to make something 
that is pretty obvious well documented?
    Ms. Gramian. I understand National Archives has issued 
policy and guidance on this particular situation and my 
understanding is that individuals who are using personal e-
mails are required to copy their official e-mails, as well.
    There are situations when this may occur and that is how to 
remedy it.
    Senator Tillis. Ms. Barr, within the Department of State, 
if we had a mid-level department director work for the 
department for a couple of years and come back into the 
department and say, ``You know what? I just decided to put all 
of my stuff on a private server,'' would they be subject to any 
disciplinary action?
    It would seem like at the lower level, if someone did that, 
that it would be a violation of common sense, if not a 
violation of policy. Would they--that be OK for someone to do 
that provided that when you finally say, ``OK. Well, now we 
need to see those e-mails'' and they send it back to you?
    What kind of recourse would you have for somebody like that 
in the organization?
    Ms. Barr. This is a theoretical question that you are 
asking me.
    Senator Tillis. Yes. I am just asking whether or not the 
practice that we are discussing here that Senator Cornyn--is it 
OK? Are we sending a message to anyone in the office that as 
long as you promise to give them back when we need them, that 
it is OK to have them hosted on private servers?
    Ms. Barr. I think that the actions that we have taken in 
the course of recovering this--these e-mails have made it very 
clear what people's responsibilities are with regard to 
recordkeeping. We have done--we continue to do training, but we 
have sent department notices, telegrams. We have talked to 
directors. I think that--I think the message is loud and clear 
that that is not acceptable.
    Senator Tillis. It is a completely unacceptable process 
going forward and it should have been retrospectively.
    Ms. Barr. Going forward, yes, sir.
    Senator Tillis. Retrospectively, the reason we have arrived 
at those policies is now we realize it was a bad--I think a bad 
decision made on the part of other people. Secretary Clinton is 
one of them, there may be others. It was just a bad decision 
that really raised--one of the reasons why you are probably 
experiencing the threefold increase in requests is that these 
kinds of things just absolutely undermine the confidence of the 
American people.
    It was a bad decision. I hope that we go so far as to say 
if you do this in the future, you get fired, and the department 
takes a very definitive stand that it is unacceptable 
particularly for someone at the top--if the person at the top 
is doing it, then you can pretty much count on the reality that 
over some period of time, people at every level of the agency 
have, and it undermines your ability to do what you need to do.
    I do not envy you for having to take the responsibility for 
providing records requests. As Speaker of the House, I was 
inundated with them. I understand how complicated it is and the 
work that you have to do to protect privileged information, 
secret and classified information.
    I think that a part of the reason why you are dealing with 
this are the acts of some people that have undermined their 
confidence in being able to get the information they deserve.
    Thank you for being here and for your hard work. If I get a 
chance, I have got some other questions on streamlining the 
process and other things to service the FOIA requests.
    Thank you, Mr. Chair.
    Chairman Cornyn. Senator Franken?
    Senator Franken. Thank you, Mr. Chairman.
    I will pick up on this because it seems like one of the 
issues, Ms. Barr, has been that Congress has been slow itself 
to update and to modernize Federal laws relating to government 
transparency, such as the Federal Records Act.
    It was not until 2014, after Secretary Clinton had left the 
State Department, that we required agency employees using 
personal e-mail accounts for official purposes to make sure a 
copy went to their own work e-mail account; is that right?
    Ms. Barr. Yes.
    Senator Franken. Yes. It strikes me that that is one of the 
many instances in which Federal law lags behind the technology. 
In general, I think this is an issue that Congress needs to 
grapple with. We have really yet to modernize the Federal 
Government's Privacy Act or commercial privacy laws, for that 
matter, and we have yet to truly modernize FOIA, which is one 
of the reasons I support Senator Cornyn's and Senator Leahy's 
FOIA Improvements Act.
    In your view, are there any other areas where Congress 
needs to take steps to ensure that the State Department's 
practices and policies reflect current use of technology?
    Ms. Barr. First, we are actively working to meet the 
deadline that my colleague from NARA mentioned about making 
sure that we have an electronic system that can cope with the 
types of requests we get.
    The one thing I would probably need more of, I mean, we 
always want people and resources, is maybe more time. Twenty 
days is very quick and if we had more time to respond before we 
could be sued to get that information, that might be very 
helpful.
    Senator Franken. Thank you. Does anybody else have a 
comment on that, because it is kind of a broad question? No?
    [No Response]
    Senator Franken. I know that the Chairman talked a little 
bit about Secretary Clinton's use of e-mails. I just want to 
point out a couple of things.
    Colin Powell admitting to using personal e-mail to conduct 
business while Secretary of State and admitted to not 
preserving any of those e-mails, but no one is accusing him of 
breaking the law. I think, as we pointed out, that the law 
really did not change on preserving those or sending those to 
the State Department e-mail until 2014, as you acknowledged, 
Ms. Barr.
    There was nothing improper, even unusual with Secretary 
Clinton selecting which e-mails to preserve and there was 
nothing improper about deleting those that were personal. Under 
the guidelines issued by the National Archives, every employee 
is responsible for determining which of their e-mails to 
preserve as Federal records and which to delete, and that is 
how the system works.
    Nevertheless, talking about the State Department, Ms. 
Pustay, it seems that the State Department has struggled for 
some time now to provide appropriate, timely responses to FOIA 
requests.
    In your position, you have the opportunity to examine the 
compliance practices of the various Federal agencies and help 
them achieve full implementation.
    Are there particular qualities, characteristics or features 
of the State Department that you think have made it 
particularly difficult or challenging for the agency to comply 
with FOIA and have contributed to its disappointing record? To 
what extent is that record a function of the agency's 
structure, its substantive focus, its culture, its resources or 
other factors?
    Ms. Pustay. I think that one thing that distinguishes the 
State Department, of course, in terms of challenges is the 
worldwide nature of their work and the many agencies that have 
a stake in the records that they create. Those things are--they 
are not unique to the State Department, but they are 
particularly challenging to State.
    The State Department also faces challenges much as the 
other large departments have faced the past few years in terms 
of rising numbers of requests, increased complexity of 
requests, and decreased staffing. This past fiscal year, the 
government overall was operating with the lowest staffing 
levels in 6 years. So those things are necessarily going to 
pose challenges to all Federal agencies administering the FOIA.
    What we have done is we have really tried to focus on the 
importance of backlog reduction and improving timeliness as a 
cornerstone of the Attorney General's FOIA guidelines. As I 
mentioned, we chose this--that topic for our very first best 
practices workshop, because what we are trying to do at my 
office is help and assist agencies in facing these challenges.
    We have the challenges, but then the question is what can 
we do to overcome them. We have been issuing guidance on best 
practices for reducing backlogs. We are encouraging greater use 
of technology in processing requests. We encourage agencies to 
have agreements with one another to cut down on the need to 
have consultations.
    There are a number of different approaches that all need to 
be taken collectively to help tackle backlogs and improve 
timeliness.
    Finally, what we have been doing every year is assessing 
agencies on how they do in reducing backlogs and improving 
timeliness. We assess agencies both on the numbers of requests 
in their backlog, if they have a backlog, and on the age of the 
oldest requests, because we think backlog reduction has two 
elements.
    Senator Franken. What is the age of the oldest request at 
State?
    Ms. Pustay. I do not know what it is for State. What we do 
is have a distinct goal that----
    Senator Franken. What is the longest outstanding one you 
have seen, just for kicks?
    Ms. Pustay. In the whole government? In the whole 
government, the oldest ones are from the 1990's.
    Senator Franken. I think that is one I filed. [Laughter.]
    I am sorry. I have run well over my time, but if you have 
more to offer on that.
    Ms. Pustay. I think it is really important for agencies to 
set a distinct goal of closing their 10 oldest requests, 
because only by systematically doing that every year can you 
have the age of the backlogs get much closer to the current 
time.
    Senator Franken. Thank you. I apologize for jumping in and 
out, but I am in a HELP hearing, as well. Thank you, Mr. 
Chairman.
    Chairman Cornyn. Thank you, Senator Franken.
    I know we have another panel. Senator Tillis, do you have 
any other questions you would like to ask verbally of this 
panel or can we go to the next panel?
    Senator Tillis. No, Mr. Chair. I will submit some for the 
record, but I am particularly interested in seeing what 
systematic changes are being done, what resources you have had 
to allocate to it, just the processes. We will hold that for 
the record.
    Chairman Cornyn. I would like to, on behalf of Senator 
Grassley, he asked me to ask one more question on his behalf, 
Ms. Barr.
    Apparently, in June 2013, Chairman Grassley wrote to the 
State Department regarding its use of special government 
employee designations, including for Ms. Huma Abedin, a senior 
advisor to Secretary Clinton.
    His concern was for potential ethics issues, and a number 
of media outlets have made FOIA requests on this topic. In June 
2013 and March 2015, Chairman Grassley requested copies of e-
mail communications between Ms. Abedin and her private employer 
while at the State Department and as of today he has not 
received a response from the State Department.
    On behalf of Senator Grassley, can you tell us when can the 
Committee expect to receive the documents requested and will 
the department be searching the e-mails from Secretary 
Clinton's private server for responsive documents?
    Ms. Barr. I have no information on that for you, sir, but I 
can certainly take that back.
    Chairman Cornyn. I would appreciate it and I am confident 
Senator Grassley would appreciate a prompt response. That was 
June 2013 and March 2015 when he made those requests. Some of 
them are quite old.
    Thank you very much for joining us. We will now ask the 
second panel to take their places.
    Our second panel is composed of Karen Kaiser and Thomas 
Blanton. Ms. Kaiser is the General Counsel for The Associated 
Press. Prior to that, she was associate general counsel for 
newsroom legal matters.
    As general counsel, she advises The Associated Press 
newsroom globally on all editorial matters, including subpoena 
defense, government investigations, reporters' privilege, news 
gathering and source issues, libel defense, prepublication 
review, Freedom of Information Act issues, and other access 
issues.
    Thomas Blanton is Director the National Security Archive at 
George Washington University, which was founded in 1985 by 
journalists and scholars to serve as a check on government 
secrecy.
    He served as the Archive's first director of planning and 
research beginning in 1986 and became deputy director in 1989 
and executive director in 1992.
    I want to extend the Committee's welcome and thanks to both 
of you for being here with us today.
    Each of you will be given 5 minutes to make opening 
statements and then I am sure Senator Tillis and I and perhaps 
some other Senators who may join us will have some questions 
for you.
    Ms. Kaiser.

  STATEMENT OF KAREN KAISER, GENERAL COUNSEL, THE ASSOCIATED 
                   PRESS, NEW YORK, NEW YORK

    Ms. Kaiser. Good morning. Chairman Grassley, Ranking Member 
Leahy, and members of the Committee, thank you for inviting me 
to testify today about ways to improve open government and 
thank you for your longstanding and unwavering commitment to 
the public's right to know.
    My name is Karen Kaiser and I am the general counsel for 
The Associated Press, the global, independent news 
organization. I am testifying today on behalf of AP and the 
Sunshine in Government initiative.
    AP's mission is simple and straightforward--to inform the 
world. AP journalists frequently rely on the Federal FOIA and 
State open records laws in their reporting. Most years, our 
journalists file many hundreds, if not more than 1,000 requests 
under these laws and we challenge denials of that right to 
access.
    Our requests often lead to important stories that could not 
have been told without reliance on our country's robust freedom 
of information laws and the principles of transparency that are 
its backbone.
    As this Committee well knows, FOIA is a powerful tool that 
allows any person to learn what public officials are doing, how 
tax dollars are being spent, and what decisions are being made.
    FOIA opens the government to the people and it is through 
that transparency that we achieve accountability, a core 
element of our democracy.
    However, despite promises of greater transparency at the 
outset of this Administration, most agencies are not abiding by 
their obligations. Earlier this year, AP filed a lawsuit 
against the State Department for its failure to respond to six 
requests covering Hillary Clinton's tenure as Secretary of 
State, including one request made 5 years ago.
    The State Department missed all its statutory deadlines and 
even its own self-created deadlines. The requests, importantly, 
concerned not only e-mails, but documents, correspondence, 
memos, calendars on some of the most significant issues of our 
time, such as the Osama bin Laden raid, surveillance practices, 
material on some of Clinton's longtime aides, and an important 
Defense contractor.
    These are documents that the public has a right to see and 
which the agency is required to release. Yet, the only way to 
force the agency to comply with its regulations and its 
requirements was to sue them.
    The State Department, as we have learned, receives a large 
number of requests, 19,000 or 20,000 last year, but I think 
anyone will agree that no matter the backlog, 5 years is too 
long to wait. This is just one example.
    Non-responsiveness is the norm and the reflex at most 
agencies is to withhold information, not to release it.
    A recent AP study of FOIA compliance showed an alarming 
increase in both the backlog and in denials; 39 percent of 
requests processed last year were denied in whole or in part 
and even more were rejected for procedural reasons.
    This bill could hardly be timelier. The changes proposed in 
S. 337 are vital to making FOIA work better, to driving the 
agencies to decisions that better align with FOIA's goals, and 
to ensuring that our government operates from a presumption of 
openness.
    The ultimate beneficiary, of course, is the American 
public.
    To start codifying the presumption of disclosure is 
critical. With this step, Congress cements the purpose of the 
act and ensures that FOIA remains strong across 
Administrations. Importantly, this change does not alter the 
substantive scope of the exemptions or the agencies' ability to 
withhold truly exempt material where disclosure would cause a 
foreseeable harm.
    Rather, the reform captures the intent of FOIA. Writing the 
presumption into the law thwarts the dilution of transparency.
    Second, the legislation will allow OGIS to speak forcefully 
in substantive disputes and make recommendations that inform 
changes in a way that captures the forward-looking approach 
that Congress had in mind when it enacted OGIS in 2007.
    By establishing a modern, integrated FOIA portal to intake, 
track and process requests, requesters will gain better access 
to information and agencies will enjoy freed resources. 
Mandating the posting of frequently requested documents saves 
agency time in processing multiple requests for the same 
material.
    Finally, we need some limitations on Exemption 5, the 
exemption for deliberative process. Despite being 
discretionary, this exemption is frequently used as a catch-all 
by agencies.
    In conclusion, it is our fundamental belief that public 
officials need to be accountable to the people they serve and 
that the public has a right to witness the government in 
operation. If secrecy is not challenged, we risk a departure 
from the principles of open government, accountability, and 
robust debate that form the foundation of our democracy.
    We need to strengthen the laws that support transparency 
and the reforms that are sought here today will keep government 
transparent and accountable and this country as a beacon of 
light.
    Mr. Chairman, Senator Leahy and members of the Committee, 
thank you very much for allowing me to speak here today and 
thank you for your commitment to FOIA. I look forward to 
answering your questions.
    [The prepared statement of Ms. Kaiser appears as a 
submission for the record]
    Chairman Cornyn. Thank you, Ms. Kaiser.
    Mr. Blanton.

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

    Mr. Blanton. Thank you very much, Senator Cornyn, Mr. 
Chairman. It is a real honor for me to be here both with the 
Associated Press, that has been such an effective user and 
advocate of the Freedom of Information Act and also one of the 
founders of Sunshine Week we celebrated earlier this year.
    My own little organization, we are veterans of about 50,000 
Freedom of Information requests across the government. We 
brought the White House e-mail lawsuit back against every 
President from Reagan through Obama that forced the White House 
to save those e-mails and ultimately make them available to the 
public.
    We have got some hands-on experience. We have done 14 
governmentwide audits of how agencies actually respond using 
Freedom of Information requests to test that response. We have 
won awards like the Emmy Award and the George Polk Award and 
the James Madison Award, and I was really proud earlier this 
year to see you, Senator Cornyn, joining that incredible list 
of open government advocates. Much deserved and I applaud your 
work on S.337 and the work this Committee has done to really 
move the Freedom of Information Act forward.
    Today we are really talking about the good, the bad and the 
ugly. The good--it is not just Clint Eastwood who does this--
the good is there are some historic breakthroughs in open 
government, mostly in the data area. The Veteran's 
Administration, a veteran used to have to file a Freedom of 
Information request to get their service records or their 
medical records. Now there is an online button they can go to 
and get that stuff instantaneously, saves the whole system, 
helps the veteran, helps the public, helps the taxpayer. That 
is efficiency.
    The Medicare cost data, like from hospitals, we found out 
that George Washington University charges twice what Georgetown 
Hospital charges for the same hip replacement. This is absurd 
and it should help us reform our health care system.
    These are breakthroughs. They come from Freedom of 
Information pressure. They come from the President's open 
government directive. They come from congressional oversight 
and attention to the agencies. They come from--some of the 
agencies have been given space to jump into the gap and show 
some leadership. That is the good.
    The bad is, as you have heard today, the Freedom of 
Information Act just is dysfunctional. We and the Associated 
Press and many others are still making headlines out of our 
results from FOIA requests and yet none of would say that it is 
working because we wait months, years, 5 years. We have to 
bring lawsuits.
    The State Department, for one, has set up a system where if 
you do not sue, you can wait 7 years. We finally had to sue 
over some records from Secretary Kissinger's tenure that we 
have been waiting on appeal for 7 years.
    That is an absurd situation. Then you read the State 
Department Chief FOIA Officer's report and they say, ``Oh, we 
are going to have to move some of our resources into FOIA 
litigation support.''
    This becomes the endless loop. It means that they are going 
to slow down requests on the front end and create more 
litigation on the back end.
    I think the ugly of today is the e-mail records 
preservation and it is not just State Department, it is across 
the government. We have lost a generation of e-mail. The 
government should have been on notice dating back to 1993 when 
we won against the White House that they needed to save their 
e-mail and then sort it out later using computer power which is 
expanding all the time.
    I think for the purposes of this hearing, I just wanted to 
make a couple of comments on previous testimony. I really 
endorse what Associated Press had to say. I had huge problems 
with what the Justice Department had to say.
    You have got the Justice Department saying we have got a 91 
percent release rate, and yet the headline on the Associated 
Press story of those same statistics is, and I quote, ``U.S. 
Sets New Record for Denying, Censuring Government Files.'' Now, 
who is right? I place my money on the Associated Press because 
you get behind those numbers and you see what the Department of 
Justice is talking about, 91 percent, they are leaving out nine 
of the 11 reasons the government does not respond. They say no 
records or there is a fee issue or there is a referral to 
another agency.
    Just the ones that get released, yes, that release rate 
runs at about 50 to 60 percent. Right there you see a big 
disjuncture and the need for this kind of hearing and this kind 
of oversight.
    The Justice Department is proud that they are finally 
giving some proactive guidance to agencies to get documents out 
to the public, but this is years late. This is 5 years after 
the President and Attorney General said that is what the 
agencies ought to do.
    The Justice Department is claiming credit for expanding 
foia.gov, but we looked at those plans and it is nothing like 
the kind of FOIA portal that my colleague here has just 
described and that we all need and every requester needs.
    I am glad to see that they are underway with doing 
governmentwide regulations. Our audits that we presented to 
this Committee show that they did not pay attention back in 
2007 when the Cornyn-Leahy bill changed the standards. It 
should have changed the regulations. Half the agencies never 
did it.
    On the State Department, she wants more time. She wants 5 
years. I am sorry. More time is not going to do it. What the 
State Department has got to do, they have got increasing 
requests because they have got a former Secretary running for 
President. There is a lot of public interest in these records. 
They need to create a SWAT team that goes in, reviews all of 
the Secretary's calendars, reviews her memcons and telcons, and 
gets those e-mails out the door. None of them are supposedly 
classified. We ought to be able to see them in a month or 2. 
And it is up to, I think, this Congress and to those of us on 
the outside to hold them to it.
    Finally, I would just point out that the crisis in the e-
mail records management, the State Department has $1 billion IT 
budget. The Chief Information Officer directly supervises $750 
million. It is not resources. It is will. It is leadership. It 
is saying to your people we have got this nice little SMART 
system--that is the acronym for their archiving e-mail system--
but their implementation was awfully dumb, because they did not 
tell their folks they had to use it.
    It is not hard. You go look online, you can look in the 
Foreign Affairs manual, there is a simple click, these are the 
instructions, click to convert to archive button. You can do 
that on any e-mail, it is up to you. They should tell everybody 
to do it. There needs to be some leadership here.
    Those are my basic comments on what was said earlier. I 
welcome your questions and I applaud this Committee's attention 
to these really pressing open government issues.
    [The prepared statement of Mr. Blanton appears as a 
submission for the record]
    Chairman Cornyn. Thank you, Mr. Blanton. I think Senator 
Leahy said it well. This is not a partisan issue and as you 
point out, there are problems with compliance that go back many 
Administrations.
    As somebody who is a conservative, I think instead of more 
laws and regulations, what we need is greater transparency and 
greater accountability, because I think I understand a little 
bit about human behavior and when people realize that what they 
are doing is going to be exposed to public scrutiny, most of us 
change our behavior or modify our behavior.
    I think this is really a critical issue and I am just in 
despair, frankly, at what you are telling us; not that you are 
telling us, but the facts, and that is that there is this 
culture of noncompliance and secrecy and passive-aggressive 
behavior and people are not embarrassed about it and they do 
not see any reason to change.
    We need to change the culture here in Washington, D.C. 
where the rhetoric is matched by the actions of the U.S. 
Government across the board through Republican and Democratic 
Administrations.
    Ms. Kaiser, beyond the threat of a lawsuit, are there any 
other remedies available to requesters in dealing with a 
noncompliant agency? Are there other tools that you think would 
be useful in compelling the production of information?
    Ms. Kaiser. Ccertainly strengthening OGIS and its ability 
to conduct mediations and issue advisory opinions even in the 
absence of mediation would go a long way to helping requesters, 
because currently there really is very little resource other 
than litigation.
    As we know, OGIS is a very powerful tool and its use can be 
strengthened. Currently, OGIS cannot force an agency to the 
table to mediate. So we need them to have some ability to issue 
advisory opinions and help even in the absence of mediation.
    Chairman Cornyn. I know Senator Grassley--Leahy and I felt 
strongly, and based on my experience as a State Attorney 
General, that an ombudsman would serve a very beneficial 
purpose because of the repetitive, redundant requests, and I am 
glad to see now that some agencies are posting the most 
frequently requested information so as to obviate the need for 
additional Freedom of Information requests.
    There is a lot we can do to make things better----
    Ms. Kaiser. Absolutely.
    Chairman Cornyn [continuing]. if we can just, as I said, 
change some of the attitudes and the culture.
    You mentioned in your written testimony that some agencies, 
Ms. Kaiser, forward Freedom of Information requests to 
political appointees so that they can be screened by the 
political appointees before the agency that has custody of the 
document actually produces it in compliance with the law on a 
timely basis. Does that delay or cause other problems with 
compliance, in your view?
    Ms. Kaiser. Absolutely. Not only does it cause a delay, but 
it also is improper. I mean, FOIA is a very independent 
mechanism for the public to gain access to government records. 
It is not a means to try to set any type of political agenda or 
political reaction in terms of what can be released and what 
should not be released.
    It is improper and it also causes delay. Every level, every 
extra level of review will cause a delay in this instance.
    Chairman Cornyn. It really strikes me as a blow at the 
fundamental idea of open government. If a political appointee 
can nix the production of a compliant--a document that meets 
the request and there is no legal prohibition to the release of 
the document, then it ought to be released, because we all 
understand that not all this stuff is going to be 
complementary. Some of it may be a little embarrassing. Some of 
it might, if revealed, cause government agencies to change 
their behavior in a way that helps the public.
    It is very, very important and I hope you will continue to 
work with us, all of us on this Committee, to try to look for 
other ways to help improve compliance.
    It is just not acceptable to hear a witness say it is just 
too hard, we just cannot do it, and we ought to be applauded 
for chipping away at a huge backlog. I have a lot of sympathy 
for Ms. Barr. I think she did a good job as a witness, but she 
has been put in an impossible position where the State 
Department is just--it is a 37. That is a failing grade in any 
school I went to.
    I have some more questions for Mr. Blanton, but let me ask 
Senator Tillis if he has questions.
    Senator Tillis. Thank you, Mr. Chair.
    Ms. Kaiser, I kind of like being on the asking end of a 
question dialog with somebody from the Associated Press. 
[Laughter.]
    I wanted to follow up, just something that Senator Cornyn 
said prompted me to ask.
    In instances where we do believe that requests for 
information are going before political appointees, presumably 
with in the department, are you all aware of any instances 
where maybe those have rolled out of the department to higher 
levels where other people are influencing the processing and 
the result of any Freedom of Information requests for this 
Administration or any other one?
    Ms. Kaiser. Unfortunately, I am not currently aware of 
that. I would be happy to get back to you with some more detail 
on that.
    Senator Tillis. Thank you. Either for Mr. Blanton or Ms. 
Kaiser. You were talking about the--I was trying to get at--I 
have a background both in terms of records management and then 
in IT in terms of normal practices or common practices, I 
should say, in business. One question I have when you are 
talking about the SMART system, why would we even allow someone 
to determine whether or not they should opt in to archiving?
    Why should we not be recording a specific event when they 
opt out and to let that be used? So that the presumption is if 
it is being created in the normal course of business, it is a 
business record that the government should generally assume 
that they need to keep. Do you agree with that?
    Mr. Blanton. Yes, sir. I would also say this was the big 
fight with our whole White House e-mail lawsuit and ultimately 
we won and the way it worked was they save it all and they sort 
it out later. Especially with the declining cost of computer 
storage and the rising power of algorithms and searching, this 
is actually what the National Archives of the United States 
should be in the business of doing.
    Not--you can sit there and have many angels dancing on the 
head of the pin about what level in the bureaucracy should the 
e-mail get saved, but I am with you on this. I think if it is 
created on government time, on government machines for 
government business, it ought to be saved. If there are privacy 
issues or a Social Security number buried in that record, it is 
not difficult to create a search algorithm to sort those things 
out and leave that privacy piece aside.
    That is what they ought to be doing, but instead you have--
in my prepared testimony, I talked about decades of sort of 
dereliction of duty. Our National Archives, with the connivance 
of the Office of Management and Budget, agreed to have a print-
to-file strategy for saving e-mail from the 1990's all the way 
to today.
    One of the reasons they could not find Secretary Powell's 
e-mails is apparently not many of them got printed out and 
stuck in a box somewhere, and the same problem I think they are 
running into with every current e-mail.
    It is a whole mindset change that has to happen and I think 
this Committee being on this case will help move that forward.
    Senator Tillis. Are there any areas that in your good, the 
bad and the ugly construct, maybe taken a different way, are 
there any agencies that seem to be doing things particularly 
well that we can learn from?
    Mr. Blanton. Yes, there are. All the agencies that are part 
of the FOIA online portal, which was originally built by the 
Environmental Protection Agency, with help from Commerce and 
other folks, they are doing Freedom of Information Act the way 
it ought to be done, a one-stop-shopping, single point-of-
contact, posting the records after they get released.
    I have to say State has taken a beating this morning, but I 
want to say one positive thing about them. In our latest audit, 
looking at this issue, as Senator Cornyn said, the only way out 
of this resource trap is for agencies to get ahead of the 
curve. Post the records in advance if there is a chance there 
is going to be a FOIA request for them.
    I would go even further and it comes from teaching a bunch 
of college students issues about the cold war, which is from 
their point of view, if it is not online, it does not exist. 
What agencies ought to think of is a presumption of openness or 
anything that gets released through the Freedom of Information 
Act should just be put online unless there is a good reason not 
to, like a Social Security number or the like.
    If we can get to that point--we went through and we audited 
165 agencies this year and found 17 of 165 were e-stars. They 
were posting their stuff online, making it easy for citizens to 
use, making it efficient for themselves to find their own 
records, and they were not getting stuck in how many times the 
thing had to be requested before it went up.
    I think that is one of the few problems with the bill, the 
Cornyn-Leahy bill currently is it still has that old ``has to 
be requested three times'' language. I think in the Internet 
age, that is not the language we need to go for.
    The presumption of openness means, I think, a presumption 
of posting. There are 17 agencies out there that are doing it 
right. It is not a matter of resources. When State Department 
built that excellent online reading room, not a single new 
dollar was appropriated. It was out of current budget.
    That is one thing I think that Freedom of Information shop 
at State deserves some real credit for.
    Senator Tillis. It seems to me--I know that some of the 
discussion is around, well, let us update our policies and 
provide some direction to the agencies so that they can tighten 
up their information, retention and management efforts, but it 
just seems to me if we have a good benchmark out there, people 
that are getting it right, that that becomes the standard. It 
is not optional for an agency to do it. This is a standard you 
have to meet.
    I would support more specific direction from Congress to 
that end, because then I think it will help with consistency, 
make it easier for you to interact, because there is a common 
engagement model and I think a more reliable way to get to the 
information.
    I also believe that a lot of this information should just 
be put out there through a portal before it is ever requested.
    Mr. Blanton. Amen.
    Senator Tillis. I mean, simply, one of the ways that Ms. 
Barr will be able to solve her problem--that is why I wanted to 
ask some process questions--is to eliminate the base that she 
ultimately has to review. Put a lot of it out there 
presumptively that it is open to the public, searchable. The 
private printed e-mails can be easily digitized. They can be 
through character recognition brought back online, subject it 
to indexing. Those are the sorts of things that we should 
require so that we get that information out there, reduce the 
queue, so that they are really only spending their time on the 
things that truly are sensitive.
    Here sensitive is is it politically sensitive versus is it 
sensitive in terms of the--whether it is a Democrat or 
Republican--sensitive in terms of the content of the document 
for privacy, security, national security.
    Thank you.
    Chairman Cornyn. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Senator Cornyn. I 
stopped by earlier, but we had another hearing in Commerce. I 
come here at the end, but I wanted to thank both of our 
witnesses.
    Following up on some of Mr. Blanton's statements, I was 
just listening in, on how you could have a more open portal. 
Ms. Kaiser, do you want to talk about what progress has been 
made? He mentioned some of the work at the State Department. 
Then what kind of online portal would you like to see?
    Ms. Kaiser. Sure. The online portal that we endorse is the 
one that I believe is currently in the current legislation. It 
is an integrated system that allows one portal for the intake, 
tracking and processing of requests for all the agencies, and I 
think something like that not only greatly increases 
efficiency, but as noted before, the documents will already be 
out there and searchable for any other requester.
    It definitely saves time on the back end for the FOIA 
officers who need more time and more resources. What is 
currently being proposed with the FOIA online portal is the 
right move.
    Senator Klobuchar. I know you have filed lawsuits in this 
area, the AP has, other news organizations. How well does the 
mediation process work with the Office of Government 
Information Services?
    Ms. Kaiser. We have not tried it with the lawsuit that we 
filed. We went straight to litigation on this one because we 
had been waiting for so long for these records that it made no 
sense to add another layer to that process.
    My experience in the past has been that, unfortunately, 
OGIS was not able to bring an agency to the table for 
mediation. Unfortunately, unless the agency is willing to come 
to the table for mediation, we have very little recourse in 
forcing them to mediate.
    There are some limitations with that system.
    Senator Klobuchar. Did you want to add something, Mr. 
Blanton?
    Mr. Blanton. Just to add that I think the legislation that 
is pending that was passed unanimously by this Committee and 
which we have endorsed would really help strengthen OGIS in 
some extremely useful ways. It will give OGIS independent 
reporting up to Congress, which it needs. It will send a signal 
of real backing. It will give them some more leverage to make 
the agencies come to the table.
    Frankly, if you look around the world at the ombuds or 
information commissioner function, ours is one of the weakest 
in the world in terms of budget, staff and power. The 
information commission in Mexico can overrule an agency and 
order the release of documents and does so through an online 
portal that is very robust.
    We need to get there, I think, in our country and it is a 
shame that we have fallen behind even our neighbors in our 
Freedom of Information Act, which used to be one of the best in 
the world.
    Senator Klobuchar. Thank you, Mr. Blanton.
    Ms. Kaiser, one last question. Are there any other changes 
you would like to see to the FOIA process in order to improve 
access for the press and the public besides what we just talked 
about with the portal and how the situation is working with 
mediation lawsuits?
    Ms. Kaiser. That is a great question. There is probably a 
lot more that we would like to see. I think starting first off 
with the presumption of disclosure is the most important and 
somehow getting the agencies to abide by their requirements 
under the law is the first and most important item we would 
like to see.
    We could have all the wonderful laws on the books and the 
presumptions of disclosure written in, but if the agencies do 
not abide by their requirements, we are in a bad position.
    I would like to see some more force behind getting the 
agencies to abide by their requirements under the law.
    Senator Klobuchar. Thank you. I do not know if you know, 
but my dad got his start with the Associated Press in the 
Bismark, North Dakota office, which once won a Pulitzer for 
Dust Bowl reporting. It was quite a while ago. Then he went on 
from there to the Star Tribune. He had a really good career 
with the AP for a long time both in North Dakota and then in 
Minneapolis.
    Thank you for your work and thank you, Mr. Blanton.
    Senator Cornyn. Thank you, Senator Klobuchar.
    Mr. Blanton, let me ask you about Exemption 5 and the 
sunset that is proposed. National Security Archive has been a 
strong supporter of imposing a sunset on that provision, which 
the FOIA Improvement Act would do. Can you explain the 
importance of that provision, in your opinion?
    Mr. Blanton. The fifth exemption is the one that covers 
deliberative process, the backroom discussions in the 
bureaucracy. It also covers attorney-client privilege and I 
think it has been one of the real holdups, that people have 
seen inside the government any attempt to limit the exemption 
as a threat to attorney-client privilege.
    Instinctively, every lawyer in this room will bristle at 
that. That is not the point here, because I think the record 
shows courts are completely deferential to attorney-client 
privilege. The problem is that the other part of the exemption, 
deliberative process, has become what a former staffer of this 
Committee, John Podesta, called the ``withhold if you want to'' 
exemption.
    The bureaucrats have applied it to just about anything, to 
draft histories 30 years old, to discussions of a draft 
resolution at the United Nations 20 years ago on Rwanda. It is 
just really abused.
    In the first 2 years of the Obama administration, it looked 
like the rate of the use of that exemption was dropping. It 
dropped from in the 60's--60,000 times down to 50,000 times, 
and the Obama administration claimed it as credit and said, 
look, this shows that the presumption of disclosure is working.
    The last 3 years it has zoomed back up and by our count, 
although this year's reports, the numbers are not precisely 
there, but between the Associated Press reporting and our 
calculation, we think the use of E5 may have hit an all-time 
record last year, over 80,000 invocations. This is a totally 
discretionary exemption.
    The Presidential Records Act puts a 12-year limit on the 
use of that exemption to cover presidential records. For those 
of us on the outside, it boggles our mind that presidents get 
only 12 years, but the bureaucrats basically have infinity 
today unless you pass the S. 337 and put a sunset on it.
    The sunset, no damage is going to be done. We have had an 
experiment these last 35 years with the Presidential Records 
Act putting a sunset on the exemption. We do not have a spate 
of lawsuits. We do not have reopened litigation. We do not have 
problems. We have a little embarrassment, like the Stephen 
Breyer issue, that memo that came out of a junior White House 
lawyer saying this guy Breyer is not really qualified to be on 
the Supreme Court. The attorney was embarrassed, had to 
apologize to Justice Breyer, who made a joke about it, we all 
got amused and we got a lesson in open government and 
accountability, and that is what we need.
    Chairman Cornyn. Mr. Blanton, let me ask you a hypothetical 
question.
    Mr. Blanton. Yes, sir.
    Chairman Cornyn. A government employee decides, as a matter 
of their personal convenience, not to use their government e-
mail, but rather to set up a personal e-mail account and to use 
that for both official business and personal business.
    If every government employee decided to do that, what would 
that do to the Freedom of Information Act and the public's 
right to know?
    Mr. Blanton. That is the end of the Federal Records Act and 
the Freedom of Information Act and it is an enormous challenge 
and it is wrong. It is wrong because in the specific instance, 
you had the head of a Federal agency doing it who is 
responsible under the Federal Records Act for records systems 
that preserve agency records. It is wrong.
    Was there a specific prohibition? No. I think Senator 
Franken was correct that that specific prohibition you had 20 
days to move the stuff over to a work system, that was not in 
place yet.
    It was wrong. Yet I would point out the irony. It is 
actually more of a tragedy because it is a commentary on our 
whole recordkeeping system. That we are probably going to end 
up with more saved, preserved e-mails from those materials 
handed over by Ms. Clinton because she had them on a private 
server than if she had kept them all on a State.gov system, 
because the State.gov system was totally broken, and that is a 
tragedy.
    That is a commentary on recordkeeping and something we have 
got to change and we are just--but is the irony of this current 
discussion that we are going to have more of those e-mails I 
think in the public domain as a result.
    Chairman Cornyn. Thank you very much. I know Senator Tillis 
has some additional questions.
    Senator Tillis. No more questions.
    Chairman Cornyn. Thank you. Thank you for your 
participation today and, more importantly than that, thank you 
for your ongoing efforts to help us help the public enforce 
their right to know what their government is doing on their 
behalf and with their hard-earned tax dollars.
    Thank you very much.
    Mr. Blanton. Thank you very much.
    Ms. Kaiser. Thank you.
    Chairman Cornyn. This hearing is adjourned.
    [Whereupon, at 11:11 a.m., the hearing was concluded.]

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