[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]

                        THE TRUMP ADMINISTRATION



                               BEFORE THE

                              COMMITTEE ON
                          OVERSIGHT AND REFORM
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                             MARCH 13, 2019


                           Serial No. 116-09


      Printed for the use of the Committee on Oversight and Reform

                  Available on: http://www.govinfo.gov

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                 ELIJAH E. CUMMINGS, Maryland, Chairman

Carolyn B. Maloney, New York         Jim Jordan, Ohio, Ranking Minority 
Eleanor Holmes Norton, District of       Member
    Columbia                         Justin Amash, Michigan
Wm. Lacy Clay, Missouri              Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts      Virginia Foxx, North Carolina
Jim Cooper, Tennessee                Thomas Massie, Kentucky
Gerald E. Connolly, Virginia         Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois        Jody B. Hice, Georgia
Jamie Raskin, Maryland               Glenn Grothman, Wisconsin
Harley Rouda, California             James Comer, Kentucky
Katie Hill, California               Michael Cloud, Texas
Debbie Wasserman Schultz, Florida    Bob Gibbs, Ohio
John P. Sarbanes, Maryland           Ralph Norman, South Carolina
Peter Welch, Vermont                 Clay Higgins, Louisiana
Jackie Speier, California            Chip Roy, Texas
Robin L. Kelly, Illinois             Carol D. Miller, West Virginia
Mark DeSaulnier, California          Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan         Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands   W. Gregory Steube, Florida
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan

                     David Rapallo, Staff Director
    Susanne Sachsman Grooms, Deputy Staff Director and Chief Counsel
          Elisa LaNier, Chief Clerk and Director of Operations
                      Krista Boyd, General Counsel
                         Kadeem Cooper, Counsel
                         Brandon Rios, Counsel
                        Laura Rush, Deputy Clerk
               Christopher Hixon, Minority Staff Director

                      Contact Number: 202-225-5051
                         C  O  N  T  E  N  T  S


Hearing held on March 13, 2019...................................     1


Melanie Ann Pustay, Director, Office of Information Policy, 
  Department of Justice
    Oral Statement...............................................     4
Rachel Spector, Deputy Chief Freedom of Information Act Officer, 
  Office of the Solicitor, Department of the Interior
    Oral Statement...............................................     6
Timothy R. Epp, Acting Director, National FOIA Office, Office of 
  General Counsel, Environmental Protection Agency
    Oral Statement...............................................     7

Written statements for the witnesses are available on the U.S. 
  House of Representatives Document Repository at: https://

                           INDEX OF DOCUMENTS


The documents listed below are available at: https://

  * Statement from the Electronic Privacy Information Center; 
  submitted by Ms. Hill

  * U.S. District Court Northern District of California-Sierra 
  Club, Plaintiff v. United States Environmental Protection 
  Agency, Defendant, Case No. 18-cv-03472-EDL; submitted by Ms. 

  * U.S. Dept. of the Interior February 28, 2019 Memo Regarding 
  FOIA; submitted by Ms. Wasserman Schultz

  * Public Citizen Statement; submitted by Mr. Sarbanes



                       Wednesday, March 13, 2019

                   House of Representatives
                          Committee on Oversight and Reform
                                                   Washington, D.C.

    The committee met, pursuant to notice, at 10:03 a.m., in 
room 2154, Rayburn House Office Building, Hon. Elijah Cummings 
    Present: Representatives Cummings, Maloney, Lynch, 
Connolly, Krishnamoorthi, Rouda, Hill, Wasserman Schultz, 
Sarbanes, Welch, Speier, Kelly, DeSaulnier, Plaskett, Gomez, 
Ocasio-Cortez, Pressley, Tlaib, Jordan, Amash, Gosar, Foxx, 
Meadows, Hice, Grothman, Comer, Cloud, Gibbs, Higgins, Miller, 
Armstrong, and Steube.
    Chairman Cummings. The committee will come to order.
    Without objection, the Chair is authorized to declare a 
recess of the committee at any time.
    The full committee hearing is convening to examine the 
compliance of Federal agencies with FOIA.
    I now recognize myself for five minutes to give an opening 
    The committee is holding this hearing on transparency under 
the Trump Administration during Sunshine Week. Sunshine Week is 
the time each year when we focus on the need for greater 
transparency in our government.
    In 1966, Congress enacted the Freedom of Information Act so 
the American people could better understand the decisions being 
made by their government. FOIA is also critical to 
understanding who is influencing those decisions and how those 
decisions will affect their daily lives.
    Today, we will hear from Ms. Melanie Pustay, the Director 
of the Office of Information Policy at the Department of 
Justice. DOJ is responsible for carrying out FOIA 
implementation across the executive branch. In my opinion, DOJ 
needs to do a much, much better job because we are seeing far 
too much information being delayed and even withheld.
    Earlier this week, during a Sunshine Week kickoff event, 
Jesse Panuccio, the Principal Deputy Associate Attorney General 
and Chief FOIA Officer for DOJ, said this during a speech, and 
I quote: ``Unfortunately, as with everything in life, there are 
excesses, and there are excesses that strain the system. Some 
groups have turned FOIA into a means of generating attorneys' 
fees or of attempting to shut down policymaking,'' end of 
    This statement is deeply troubling. This sounds like DOJ is 
framing requests for information as obstructions. The Trump 
Administration should be operating with a presumption of 
openness, as the law now requires, rather than maligning FOIA 
requesters who are simply seeking the truth.
    We also will hear today from the Acting Director of the 
National FOIA Office for the Environmental Protection Agency, 
Tim Epp. Last year, our committee uncovered troubling issues 
with the way EPA was responding to FOIA requests in an 
investigation of former Administrator Scott Pruitt and his 
senior staff.
    The Chief of Staff stated during a transcribed interview 
with our committee staff that EPA staff were referring, and I 
quote, ``politically charged'' FOIA requests to political 
appointees for review. He also explained that certain requests 
were being deliberately delayed. Today, we will investigate 
whether these tactics are still being used.
    Finally, also testifying today is the Acting Deputy Chief 
FOIA Officer from the Department of the Interior, Rachel 
Spector. On December 28th, during the government shutdown, the 
Department proposed a new rule that would make it harder for 
requesters to obtain information.
    Last week, I sent a letter to the Acting Secretary raising 
concerns about the proposed rule, and I was joined by Senator 
Patrick Leahy, Senator Chuck Grassley, and Senator John Cornyn.
    That letter, as you can see, was bipartisan, and oversight 
of FOIA compliance should always be bipartisan.
    In 2013, when I was the Ranking Member of this committee, I 
worked with our Republican chairman at the time, Darrell Issa, 
to introduce a FOIA reform bill. For three long, hard years, we 
worked together to advance this bipartisan bill through the 
Congress. And then, with the help of Senator Cornyn and Senator 
Leahy, we got it over the finish line. President Obama signed 
the FOIA Improvement Act into law in 2016. I am grateful to the 
many members of this committee who sponsored the legislation, 
including my Republican colleagues, Mr. Hice from Georgia and 
Mr. Gosar from Arizona.
    The FOIA Improvement Act is a prime example of how Members 
of Congress from both parties can work together to achieve 
positive results for the American people.
    The law made a lot of important changes, but the Trump 
Administration, unfortunately, is failing to fully comply with 
the requirements of the new law.
    Some agencies, including EPA, have not updated their 
regulations. Other agencies still have not published data on 
FOIA compliance for the year 2018. The Department of the 
Interior did release its data online, but it shows that the 
Department proactively disclosed 58 percent less data than the 
last full year of the Obama Administration.
    I know that there are FOIA officers across the executive 
branch watching this hearing this morning. I want to say to 
them that I know you need more resources and more support for 
the work you do. So let me be clear. This hearing will not be 
the end of our work as a committee on these issues. We will 
fight to bring greater transparency to all operations of our 
    And with that, I yield to the distinguished ranking member 
of this committee, Mr. Jordan.
    Mr. Jordan. Thank you, Mr. Chairman, for calling this 
hearing to examine government transparency during the week in 
which we are promoting open and transparent government, 
Sunshine Week.
    Nothing holds a government more accountable than making its 
actions open and transparent to the American taxpayer. 
Transparency is the lifeblood of an informed democracy.
    Essential to this precept is the Freedom of Information 
Act, which gives the public a tool to gain insight into how 
their government functions. FOIA's promise of openness is 
central to this committee's mission of increasing transparency 
throughout the Federal Government. It is not hard to make a 
FOIA request, but navigating the FOIA process is complicated, 
and it varies across government agencies.
    In responding to a FOIA request, each agency has its own 
set of standards, which may or may not be updated to reflect 
current law. The FOIA law requires documents to be released 
unless those documents fall into the exemptions outlined in the 
    In large part, FOIA's efficacy is limited by the 
responsiveness of the agency that receives and processes the 
request. It is our job here in Congress to ensure agencies are 
following the law when it comes to FOIA. Congress intended for 
FOIA to increase accountability by giving taxpayers a view into 
the inner workings of their government. FOIA compliance has not 
come easily for many agencies. Issues with agency FOIA 
compliance did not begin, though, during the Trump 
Administration. Although President Obama pledged to have the 
most transparent administration in history, his administration 
had several notable FOIA-related problems.
    Under President Obama, agencies changed FOIA regulations, 
implemented new policies, abused the exemptions, refused to 
produce responsive records, and struggled with overall FOIA 
    The Trump Administration has received an unprecedented 
number of FOIA requests. This is important. The numbers went up 
for the Trump Administration.
    A major reason for the increases at EPA and other agencies 
is that former Obama and Clinton staffers, acting under the 
guise of being transparent organizations, are being paid by the 
Tom Steyers of the world to harass the executive branch now 
that it is in Republican control.
    For example, American Oversight, which is led by Austin 
Evers, who oversaw FOIA-related matters at the State Department 
under President Obama, admits on its website, and I quote: 
``American Oversight is filing FOIAs and lawsuits that mirror 
the document requests sent by the chairs and ranking members of 
key congressional committees. With the House of Representatives 
poised to begin conducting aggressive oversight, we will be 
able to go to court to force the release of these records.''
    During Fiscal Year 2017, according to the Office of 
Information Policy, the government received a record high of 
over 818,000 FOIA requests. Even with this unprecedented level 
of requests, many agencies reduced their FOIA backlogs. 
According to OIP, even those agencies who did report an 
increase in their FOIA request backlog made impressive efforts 
to increase the number of requests processed.
    Nonetheless, this is an important duty for Congress to 
ensure that when it comes to FOIA, agencies are following the 
    I want to thank our panel of witnesses for being here 
today, and I look forward to hearing from all of you about your 
experiences with FOIA, the efforts your agencies are making to 
comply with the spirit of our law, and any suggestions you 
might have to ensure disclosure of information is timely, 
accurate, and routine.
    With that, Mr. Chairman, I yield back.
    Chairman Cummings. I want to thank the gentleman for his 
    With that, I now want to welcome our witnesses for today's 
    Ms. Melanie Pustay?
    Ms. Pustay. Pustay.
    Chairman Cummings. Say it again.
    Ms. Pustay. Pustay.
    Chairman Cummings. Okay, I like that.
    Ms. Pustay. I think I do, too.
    Chairman Cummings. And you are the Director of the Office 
of Information Policy, U.S. Department of Justice.
    Mr. Timothy Epp is the Acting Director of the National FOIA 
Office at the Environmental Protection Agency.
    Ms. Rachel Spector is the Acting Deputy Chief FOIA Officer 
for the Department of the Interior.
    Thank you all for participating in today's hearing.
    If you all would please rise, I would begin to swear you 
in, and would you raise your right hand.
    [Witnesses sworn.]
    Chairman Cummings. You may be seated.
    Let the record show that the witnesses answered in the 
    To our witnesses, the microphones are sensitive, so please 
speak directly into them.
    Without objection, your written statements will be made a 
part of the record.
    With that, Ms. Pustay, you are now recognized to give an 
oral presentation of five minutes, and I would ask that you try 
to limit your comments. I try to be fair and liberal. I know 
you want to get stuff out, statements out, but keep in mind 
that we do have your entire statement. So if you would be kind 
enough to summarize? Okay, thank you very much. Keep your voice 


    Ms. Pustay. Good morning again, Chairman Cummings, Ranking 
Member Jordan, and members of the committee. I am pleased to be 
here today to discuss the Freedom of Information Act and the 
Department of Justice's ongoing efforts to ensure compliance 
with the statute.
    My office has undertaken a range of initiatives designed to 
assist agencies in improving their FOIA administration, and 
today I am pleased to highlight some of those efforts.
    Just last month, OIP issued comprehensive guidance to 
agencies on adjudicating administrative appeals under the FOIA. 
As one of the agencies that receives and processes the most 
FOIA appeals across the government, we have seen firsthand the 
positive benefits that a robust administrative appeals process 
can have for both agencies and requesters.
    For a requester, the FOIA administrative appeals process 
provides a simple-to-use mechanism to seek review of the 
initial action taken on a request. That, in turn, increases 
their confidence in the FOIA process.
    For agencies, an effective appeals process provides an 
opportunity to review and reevaluate, if necessary, the initial 
action taken on a request to provide clarification, correct any 
mistakes, and thereby obviate unnecessary judicial review.
    Now, while the administrative appeals process offers a 
formal mechanism for requesters to seek a second review of the 
action taken on their request, agencies often interact with the 
public in more informal ways through their FOIA requester 
service centers and their FOIA public liaisons. In June 2018, 
OIP issued guidance to agencies that addresses the importance 
of quality requester services as agencies engage with the 
public during all stages of the FOIA process.
    Now, overseeing all of the agencies' FOIA operations are 
agency Chief FOIA Officers. DOJ's FOIA guidelines have long 
held that improving FOIA performance requires the active 
participation of agency Chief FOIA Officers. The Department 
addressed this critical aspect of FOIA administration by 
issuing a memorandum in January that emphasized the significant 
role of the Chief FOIA Officer and the importance of ensuring 
that this position is properly designated at the assistant 
secretary level or equivalent, as is required by law.
    We also required agencies to report on whether their 
designations meet the statutory requirement in their 2019 Chief 
FOIA Officer reports.
    Now, in addition to providing guidance to agencies, the 
Department firmly believes that training is fundamental to any 
successful FOIA program. Such training helps ensure that the 
law is properly and consistently implemented across the 
government. As part of our efforts to encourage governmentwide 
compliance with the FOIA, every year experts from my office 
provide training to thousands of FOIA professionals across the 
government. We also hold best practices workshops so that we 
can share successful strategies and approaches to FOIA 
    The Department's FOIA guidelines stress that every agency 
must be accountable for their FOIA administration, and we 
engage in a number of efforts to keep agencies accountable, and 
also to help them move forward in their administration of the 
    Every year, OIP issues reporting requirements for agencies 
that focus on five key areas, including proactive disclosures, 
use of technology, and timeliness in responding to requests. We 
conduct a detailed review and assessment of agencies' progress. 
We score agencies on a variety of milestones, providing a 
visual snapshot of the progress being made in areas in need of 
    I would like to take a minute to highlight one of our major 
initiatives. As you know, the FOIA Improvement Act included a 
requirement that DOJ and OMB ensure the operation of a 
consolidated online request portal that allows members of the 
public to submit a request to any agency from a single website. 
Last March, we were very pleased to go live with our first 
iteration of the National FOIA Portal, which resides on 
FOIA.gov. Since the release of the portal, FOIA.gov has 
received over a million page views, and 9,000 requests have 
been transmitted through the portal.
    Building on this achievement, last month DOJ and OMB issued 
joint guidance to agencies on becoming fully interoperable with 
the portal. The directive also requires agencies to regularly 
update their FOIA.gov accounts and to annually certify to DOJ 
that they have done so. We are very pleased with the positive 
feedback that the National FOIA Portal has received from both 
the public and the agencies, and we look forward to continuing 
to make improvements to that site.
    Now, we believe that every request is important. And yet, 
with finite resources and an ever-increasing volume of complex 
requests, the challenges that many agencies face and the strain 
on the system can be substantial. OIP is fully committed to its 
responsibility of encouraging governmentwide compliance with 
the FOIA. We will continue to guide and train agencies to share 
best practices and explore IT innovations, all to help agencies 
meet the FOIA challenges of today.
    Thank you.
    Chairman Cummings. Thank you very, very much.
    Ms. Spector?


    Ms. Spector. Chairman Cummings, Ranking Member Jordan, 
members of the committee, thank you for the opportunity to 
appear before you today. My name is Rachel Spector, and I am 
the Deputy Chief Freedom of Information Officer in the Office 
of the Solicitor at the Department of the Interior, a newly 
created position that I have held for the past two months.
    I have worked in public service the majority of my life, 
beginning with my employment as a legislative assistant to 
Congressman Dave Obey for almost eight years. I left that 
position to attend law school and returned to public service 
when I joined the Solicitor's Office at Interior in 2002.
    For most of my career in the Solicitor's Office I have 
worked in the division that provides legal services on core 
administrative law matters, including the FOIA. During my 17-
year tenure at Interior, I proudly served as a career public 
servant to both Republican and Democratic administrations, 
assisting the Department to pursue its great mission in a 
lawful manner.
    The Department's FOIA offices have experienced a 30 percent 
increase overall in the volume of incoming FOIA requests since 
Fiscal Year 2016. The FOIA office for the Office of the 
Secretary has been hit especially hard, experiencing a 210 
percent increase.
    Because many of the Department's FOIA offices are unable to 
timely respond to the increased volume of requests, the 
Department has also experienced an unprecedented increase in 
FOIA litigation in which requesters are not suing the 
Department because it allegedly withheld documents that are 
subject to release under the FOIA but simply because requesters 
have not received timely responses to their requests.
    The surge in FOIA litigation further hobbles the ability of 
FOIA processors to do their work in a timely and equitable 
manner because the litigated requests typically jump to the 
head of the queue ahead of non-litigated requests.
    The FOIA professionals at the Department are dedicated 
public servants who are committed to their work on behalf of 
the American people. These circumstances, however, have led to 
an environment in which the Department is unable to properly 
serve the FOIA requester community.
    Leadership in Interior believes it is imperative to break 
this unproductive cycle. To that end, former Secretary Zinke 
issued Secretary's Order 3317, a copy of which is included in 
my written materials, that underscores the Department's 
commitment to an equitable FOIA program that ensures compliance 
with statutory requirements of transparency, accountability, 
and prompt production.
    The order designates the Solicitor as the chief FOIA 
officer in the Department to significantly increase the 
visibility and authority of the position and leverage the 
substantial legal expertise of the Solicitor's Office with 
respect to the FOIA.
    The order also establishes the operational position of DCFO 
to oversee the Department's FOIA program and take meaningful 
steps to improve the quality, efficiency, and consistency of 
the work performed by the FOIA offices.
    As DCFO, I have begun a broad effort to improve the 
organization and governance of the Department's FOIA program 
that includes establishing uniform position descriptions and 
performance standards for FOIA staff and setting appropriate 
pay grades; establishing hiring requirements for the bureaus to 
assure adequate staffing and top-quality hires; creating a 
robust training program for FOIA officers and processors; 
issuing standard operating procedures for FOIA processing and 
other needed policies; and obtaining and deploying modern, 
reliable technology for FOIA request tracking, as well as tools 
for searching, collection, and document review.
    I am proud to lead this important effort to improve the 
Department's ability to meet its obligations under the FOIA. I 
also appreciate the consistent bipartisan interest of the 
Congress in the FOIA and welcome any insights members of the 
committee may have to assist the Department in meeting this 
important goal.
    With that, I conclude my remarks. Thank you again for the 
opportunity to appear before you today.
    Chairman Cummings. Thank you very much.
    Mr. Epp?


    Mr. Epp. Good morning, Chairman Cummings, Ranking Member 
Jordan, and members of the committee. As mentioned, my name is 
Timothy Epp. I am the Environmental Protection Agency's Acting 
Director for the National FOIA Office within the Office of 
General Counsel.
    EPA created the National FOIA Office this past year to 
provide centralized FOIA program services for the agency in 
what otherwise remains a substantially decentralized FOIA 
    I appreciate the opportunity to come before you today, 
during Sunshine Week, to share EPA's commitment to operate 
transparently and to improve the speed and quality of EPA's 
FOIA responses.
    I would like to quickly touch upon key items covered in 
greater detail in my prepared statement, namely the commitment 
of EPA senior leadership, the many initiatives EPA is 
implementing, EPA's proactive disclosure, and the challenges 
EPA faces.
    First, on the senior leadership's commitment. EPA 
established a strategic goal on transparency which includes 
eliminating the FOIA backlog. Also, this past August, then 
Acting Administrator Wheeler held a planning meeting on FOIA 
with agency senior leadership. At that meeting he expressed his 
expectation for EPA's quality and timeliness in FOIA responses. 
He directed a review of the agency's efforts, and he asked for 
options for the EPA to take concrete actions to address FOIA 
processing quality and timeliness.
    Administrator Wheeler also sent an announcement to all EPA 
staff reinforcing the agency's commitment to transparency and 
FOIA timeliness and quality. Also in November, EPA issued a 
significant policy memo to streamline and eliminate confusion 
regarding EPA's awareness notification process.
    EPA also added FOIA accountability language to all FOIA 
managers' performance agreements addressing FOIA response 
quality and timeliness, and for appropriately supervising and 
training all EPA professionals who administer FOIA responses.
    Over the past year, EPA significantly improved its FOIA 
program in a number of ways. First, EPA delegated the Chief 
FOIA Officer function to the General Counsel to raise the 
profile and accountability of the EPA's FOIA implementation.
    Second, EPA launched a reorganization of the FOIA programs 
in each of the 10 EPA regional offices, moving those programs 
into the Regional Counsel's offices in order to provide 
reporting responsibility lines up to the General Counsel, who 
is the Chief FOIA Officer.
    Third, EPA created the National FOIA Office, which I now 
head. The National FOIA Office was created by a merger of the 
National FOIA Program into the Office of General Counsel and 
combining it with the previously existing FOIA Expert 
Assistance Team, which we call the FEAT. The NFO provides 
centralized programmatic services pertaining to the agency's 
implementation of the FOIA, including request intake and 
assignment for headquarters program offices. The FOIA staff 
also staffed the FOIA Requester Service Center and the FOIA 
Public Liaison. They issue expedited processing and fee waiver 
determinations, prepare a monthly and annual FOIA report, 
provide training, and the office is responsible for updating 
and reviewing the FOIA website, regulations, policies, and 
    The FOIA Expert Assistance Team provides legal counseling, 
training, and project management assistance on the most 
challenging, complex, and high-profile FOIA requests that the 
agency receives. The FEAT has been in existence since 2013, and 
has worked on the agency's most significant public health and 
environmental FOIA projects, including ones that are in the 
news such as Gold King Mine, the Flint drinking water crisis, 
Bristol Bay, as well as the enforcement action on VW. By 
establishing this office with both of those functions, the 
agency intends to improve its FOIA responses.
    I see that I am running out of time to describe the other 
improvements that we have made. I would be happy to take your 
questions, and thank you. With that, I will conclude.
    Chairman Cummings. Thank you very much.
    I yield now to Ms. Pressley, five minutes for questions.
    Ms. Pressley. Thank you, Mr. Chairman.
    Ms. Pustay, the FOIA Improvement Act of 2016 encourages 
proactive disclosure. That bipartisan law requires agencies to 
identify records of general interest and to post those records. 
Is that correct? Yes or no?
    Ms. Pustay. I am sorry. I----
    Ms. Pressley. I will start over.
    Ms. Pustay. Thank you.
    Ms. Pressley. I have only five minutes, though.
    The FOIA Improvement Act of 2016 encourages proactive 
disclosure. That bipartisan law requires agencies to identify 
records of general interest and to post those records. Is that 
    Ms. Pustay. You are not exactly quoting the statute, but it 
is definitely correct that the FOIA Improvement Act has a 
provision to require agencies to make proactive disclosure.
    Ms. Pressley. Okay. I will move on.
    Investigations by the Sunlight Foundation have revealed 
that the Department of Health and Human Services has removed 
web pages providing information about the Affordable Care Act 
from the Medicare.gov website. The Sunlight Foundation report 
notes that the deleted page contained information on how 
Medicare coverage relates to the health insurance marketplace 
and links to pages with additional information. Other similar 
reports from the Sunlight Foundation note that the Department 
of Health and Human Services has also scrubbed information 
about breast cancer, preventive services guaranteed by the 
Affordable Care Act, as well as various LGBTQ health issues 
from its website for the Office of Women's Health.
    Were you aware that the Department of HHS has removed 
content related to preventive care, LGBTQ health, and women's 
health from its website?
    Ms. Pustay. I really would refer you to HHS for the 
decisions that they have made on posting or not posting 
    Ms. Pressley. Well, do you endorse that decision?
    Ms. Pustay. We at the Department of Justice have a strong 
record of encouraging agencies to proactively post information 
beyond what is required by the statute to be posted, but to 
actually look for information that is of interest to the 
public, to work with their community of requesters, to 
    Ms. Pressley. I am sorry, but this is about people's lives 
and access to really critical information. So in your personal 
opinion, scrubbing information about breast cancer, preventive 
services guaranteed by the ACA, and various LGBTQ health issues 
from its website, this is the Office of Women's Health, what is 
your personal opinion of that?
    Ms. Pustay. Well, I am not here to give you my personal 
opinion, but I can give you my opinion in my role at the 
Department of----
    Ms. Pressley. Okay. I think you did that, and we just 
    Moving on, the Sunlight Foundation also reported that the 
Department of Justice has removed information from its website 
without providing any notice or explanation. Specifically, the 
report notes that the Department of Justice removed information 
from its website for the Office of Violence Against Women, 
including removing a section on how to respond to stalking. 
That section provided links with specific tips for victims, for 
prosecutors, law enforcement officers, judges, and others.
    Were you aware that the DOJ removed these resources for 
victims of domestic violence from its website?
    Ms. Pustay. No, I am not personally aware, aware in my 
official capacity. I am happy to make further inquiries about 
it, though.
    Ms. Pressley. Well, I hope you would because, again, this 
is denying victims access to critical information that could 
determine their very life or death.
    Despite the fact that the Office of Violence Against Women 
has a website archive, the deleted information does not appear 
to be provided in the archive.
    Do you agree that it is important for agencies to provide 
helpful information about how Americans might obtain assistance 
under existing laws? Yes or no?
    Ms. Pustay. I definitely think it is important for 
proactive disclosures to be there to help the public and inform 
the public.
    Ms. Pressley. Okay. One more time for the record. Do you 
agree that it is important for agencies to provide helpful 
information about how Americans might obtain assistance under 
existing laws? Because the stalking information and that 
critical information was removed.
    Ms. Pustay. Yes. I do not want to address a specific set of 
documents without knowing more about them. It would not be 
responsible of me to do so. But I absolutely agree that the 
reason for having proactive disclosures, and why it is such an 
important part of the FOIA, is to provide information that is 
of interest to the public affirmatively so that there is not a 
need to make a FOIA request for it. That is an important part 
of the Freedom of Information Act, and it is an aspect of----
    Ms. Pressley. Okay. I am sorry, but I am running out of 
    Do you think it would be an appropriate issue for the 
Department of Justice to review?
    Ms. Pustay. I am certainly happy to look into it.
    Ms. Pressley. Okay. Given that some agencies--and I am out 
of time. Thank you.
    Chairman Cummings. I thank the gentle lady.
    When you talk, we cannot hear you. So when you talk into 
the mic, can you get it kind of close to you? All of you, 
please, so we can hear you. All right? I think we kind of got 
through that one.
    Mr. Meadows for five minutes.
    Mr. Meadows. Thank you, Mr. Chairman. Thank you for holding 
this hearing as we continue to look at FOIA.
    Ms. Pustay, I can tell you that this is not a partisan 
issue. It is one that we have had a number of hearings on, and 
candidly, I appreciate your willingness to actually move the 
ball down the road and get a lot of this information flowing to 
the American people.
    I think transparency is good medicine, and yet we continue 
to miss the statute. The statute is very clear on how quickly 
we need to respond to FOIA requests, and honestly, that is just 
not happening. Would you agree with that?
    Ms. Pustay. There is no doubt, as I mentioned in my opening 
statement, for many agencies there is a strain on the system.
    Mr. Meadows. That was not my question. My question was is 
there a statute that gives a number of days that you need to 
reply to FOIA requests? Is there not a law?
    Ms. Pustay. The statute actually provides several 
mechanisms for seeking an extension of time and provides for--
let me say it this way--recognizes that there are many 
situations, and it is set forth in the statute where it will 
take longer than 20 days, or even 30 days, to respond to a 
request. So the statute has built into it a recognition of the 
fact that agencies will be challenged at times in responding 
within 20 or 30 days.
    For instance, with voluminous requests----
    Mr. Meadows. I get that.
    Ms. Pustay. When someone asks for thousands or tens of 
thousands of pages----
    Mr. Meadows. No, I get that. So let me just ask you, and 
here is the crux of the matter. Overall, we are not complying 
with the law as the Federal Government, and this did not just 
happen under President Trump. It happened under the previous 
administration, and the administration before that. We are not 
complying with the law, or at least even the spirit of the law, 
which says that when you get a FOIA request, you actually try 
to get it out of the door in 21 days. Is that correct?
    Ms. Pustay. I respectfully disagree with the premise. I do 
think that agencies overall are complying with the law.
    Mr. Meadows. Okay. Then why do we have FOIA requests, Ms. 
Pustay? That was supposed to be a softball question. So why do 
we have agencies that continue--we are still waiting on 
documents that we requested from the State Department under the 
previous administration. So how can you say that that is 
compliance? How could Judicial Watch go through a lawsuit and 
get documents that both Democrats and Republicans have 
requested, and they get them through the courts, but we cannot 
get them through normal requests? How does that happen?
    Ms. Pustay. One of the things that I think actually has a 
very unfortunate negative impact on FOIA administration is the 
fact that when somebody goes to court, and goes to court after 
day 20 or after day 30, because the statute allows people to go 
to court that quickly, that what happens all too often is it 
pushes that request to the front of the line, and then the 
ordinary citizen, the historian, the journalist, their requests 
get kicked further back.
    Mr. Meadows. So how do we fix that? I agree that that is 
happening. So how do we fix that?
    Ms. Pustay. Well, that would require a statutory change.
    Mr. Meadows. What do you mean that requires--just to give 
them more time?
    Ms. Pustay. I mean, I am certainly, obviously, happy to 
talk with the committee and work with the committee on 
legislative proposals. What agencies have to do, as a practical 
matter, taking the law as it is now, is manage their resources 
so that they can handle litigation deadlines that are now being 
imposed on them by court order, incorporate that within their 
day-to-day processing of requests from ordinary citizens; and 
because we have had, year after year, a tremendous increase in 
the volume of requests coming in, one of the things that we 
have been advising agencies to do is to focus on simple track 
requests, smaller volume requests----
    Mr. Meadows. And have you seen an increase there in terms 
of compliance? I know you----
    Ms. Pustay. Yes.
    Mr. Meadows. And what percentage increase?
    Ms. Pustay. We score agencies every year on whether or not 
their simple track requests can be processed within an average 
of 20 working days.
    Mr. Meadows. And how many of them are complying? I mean, 
what is the percentage?
    Ms. Pustay. I do not have the actual numbers.
    Mr. Meadows. Can you get that back to the Chairman or the 
Ranking Member?
    Ms. Pustay. It is available on our website, but we are 
happy to also give it to you, yes.
    Mr. Meadows. Okay. Here is my concern, and here is what I 
would ask you to help our committee out with. We need to 
streamline the process, whether it is when a document is 
created and it gets a stamp that says this is Okay for FOIA 
release--the problem is that you have too many people, in my 
opinion, in the chain of approving something before it goes to 
the American public. So you get documents that should be 
released easily that have to still go through the chain.
    Can you come up with two or three recommendations on how we 
streamline that process and report back?
    Ms. Pustay. Yes, sure, happy to do so.
    Mr. Meadows. All right. Thank you.
    I yield back.
    Chairman Cummings. Thank you very much.
    Mrs. Maloney?
    Mrs. Maloney. Thank you. Thank you, Mr. Chairman.
    Ms. Pustay, on December 28th, 2018, the Department of the 
Interior proposed a new rule on processing FOIA requests. Did 
Interior consult with the Office of Information Policy before 
it issued the proposed rule?
    Ms. Pustay. No, it did not.
    Mrs. Maloney. It did not. The rule proposed by Interior 
would set limits on requests when they involve the processing 
of, quote, ``a vast quantity of material,'' end quote. The rule 
seems designed to give Interior discretion to arbitrarily 
reject requests by claiming the requests are too large or too 
    In 1983, the Department of Justice explained in a guideline 
document, and I quote, ``The sheer size of burdensome requests 
of a FOIA in and of itself does not entitle an agency to deny 
that request on the grounds that it does not reasonably 
describe records,'' end quote.
    Is the proposed rule consistent with guidelines issued by 
the Department of Justice?
    Ms. Pustay. I will let my colleague from the Department of 
the Interior discuss their proposed regulation. What I can tell 
you is that we will be engaging with the Department of the 
Interior to----
    Mrs. Maloney. Okay. I have limited time, and we will get 
that response from them.
    And under the rule proposed by Interior, the agency would 
be able to ignore a request that, quote, ``requires the bureau 
to locate, review, redact, or arrange for inspection of a vast 
quantity of material,'' end quote.
    Is Interior authorized to deny a request based on its sheer 
size alone, without even trying to work out a response with the 
requester? Ms. Spector, Interior's proposed rule does not 
define what Interior would view as ``a vast quantity of 
material.'' Without a clear standard, would you say, Ms. 
Spector, that the rule could easily be abused to obstruct the 
public's access to information from Interior? And are there any 
limits to Interior's ability to deny requests under the 
proposed rule?
    Ms. Spector. Well, I will start with the last question that 
you posed. Indeed, there are limits. The ``vast quantity'' 
language that you have quoted from our proposed rule is a 
codification of a 1990 D.C. Circuit Court opinion. Since 1990, 
there has been a body of case law that has developed, and we 
would use that case law as the sideboards to make that 
determination and not make that determination in an arbitrary 
and capricious manner.
    The purpose of placing that--of proposing that change in 
our regulations was to address the substantial increase in 
complex discovery-like requests we are receiving for any and 
all records, or requests to conduct broad keyword searches.
    Mrs. Maloney. And, Ms. Pustay, is there any compelling 
reason why Interior's FOIA office should have more onerous 
rules for processing requests than any other agency in 
government? Is there any reason why they should have this 
    Ms. Pustay. I do not want to comment specifically on 
Interior's rules because we are going to be working with them.
    Mrs. Maloney. Well, the Chairman has commented on it. 
Chairman Cummings, along with Senator Leahy, and in a 
bipartisan way with Republican Senators Chuck Grassley and John 
Cornyn, they sent a letter to Acting Secretary David Bernhardt 
to express their significant concern over this unfair proposed 
rule, and I agree completely with their statement and with 
their letter.
    The American people have the right to access information 
from the Department of the Interior, and the proposed rule 
would needlessly encroach on that right. So I urge DOI and 
everyone to object to this proposed rule and withdraw it 
immediately. It is very unfair and it seems like an attempt to 
withhold information.
    And I yield back the balance of my time.
    Chairman Cummings. Mr. Hice for five minutes.
    Mr. Hice. Thank you, Mr. Chairman.
    Ms. Pustay, I just want to echo what has already been said. 
There are many on this committee who have been waiting for 
documents for a long, long time, particularly some from the 
Obama Administration for years. We really would like to get 
those documents as soon as possible. I want to make sure that 
that is clearly communicated.
    I understand the difficulty with the requests going up. I 
get that. But the task is the task and needs to be handled.
    Mr. Epp, let me go to you. How many people at the EPA work 
on FOIA?
    Mr. Epp. So, our annual report indicates that there are 
approximately 100 full-time employees who work on FOIA, and 
approximately another 100 full-time FTEs. So those are partial 
    Mr. Hice. So does every office within the EPA have a FOIA 
office, every department?
    Mr. Epp. Every one of the major program divisions has a 
FOIA program.
    Mr. Hice. Okay. Is it adequate enough to respond to the 
    Mr. Epp. Well, we have been responding to requests--
approximately 60 percent of the requests we respond to within 
the 20-day time period. But we also, at the end of Fiscal Year 
2018, had a substantial backlog.
    Mr. Hice. Okay. And do you have plans to deal with that 
    Mr. Epp. We have a lot of plans to deal with that backlog. 
As I was listening, and in my prepared remarks and opening 
statement, we have started a reorganization of the FOIA 
program. We have created a centralized National FOIA Office. We 
are looking at ways of centralizing other aspects of the 
program; and, yes, we have----
    Mr. Hice. When will those ideas be implemented?
    Mr. Epp. We have already started implementing those 
activities. So the reorganization of the Regional Counsel's 
Offices are going to waterfall forward starting in this month.
    Mr. Hice. What kind of requests are coming in? Is it 
changing? In other words, are we having more requests from 
reporters, from members of the public, from advocacy groups? 
Are we seeing a change in the requests?
    Mr. Epp. So, we have seen a change in terms of in 2017 and 
2018. We had approximately 1,000 more requests each year than 
we had in the prior year. We have also seen that those requests 
have been concentrated more in the Office of the Administrator. 
One year it was 368 percent more than year 2016, and the other 
year it was 415 percent more than that base year of 2016.
    We have the data to look at particular requesters. I have 
not broken that out. I have not done an analysis of that.
    Mr. Hice. Are you able to?
    Mr. Epp. We would be able to.
    Mr. Hice. Would you get that back to us? Just out of 
    Mr. Epp. We can work with the committee on those sorts of 
    Mr. Hice. Okay, thank you.
    What about complex requests? Are you seeing an increase in 
the complex?
    Mr. Epp. We have noticed, at least particularly in the 
Office of the Administrator, some increase in complexity in a 
number of different ways, requests that ask for all 
communications, for example, without any narrowing of it, as 
well as requests that have multiple subparts and that as a 
result produce large document collections that we must review.
    Mr. Hice. Have those complex requests increased with the 
Trump Administration?
    Mr. Epp. We have noticed that increase over time, in 
particular over the last couple of years.
    Mr. Hice. Okay. Can you give me some examples of the 
numbers of responsive records in a complex? What are we talking 
    Mr. Epp. So, we have one particular request right now that 
we have been in the process of assembling, collecting the 
documents for it. We have not completed that collection, but 
right now the workspace in the Relativity document review 
software has over 139,000 documents in it. And, of course, that 
is not pages; that is documents. Each document will have 
multiple pages. So we are talking about a very substantial 
amount of material to review for that particular request.
    Mr. Hice. Okay. So a quick comparison--I am running out of 
time here. How long does it take, on average, just to do a 
simple FOIA versus a complex request?
    Mr. Epp. So, our simple FOIA requests, as I have mentioned, 
approximately 60 percent of the requests we respond to within 
the 20-day time period. Our other requests, like I mentioned we 
have a significant backlog, and some of those are months and/or 
    Mr. Hice. Okay. Thank you very much.
    I yield back, Mr. Chairman.
    Chairman Cummings. Mr. Lynch?
    Mr. Lynch. Thank you, Mr. Chairman and Ranking Member, for 
holding this hearing. I do want to say thank you to the 
distinguished panel for helping the committee with its work.
    Ms. Pustay, the committee, along with a number of outside 
public interest groups, have been involved in a national 
security review of multiple whistleblower reports that describe 
a concerted effort inside the White House to transfer highly 
sensitive nuclear technology to Saudi Arabia. This sudden 
behind-the-scenes scramble to transfer sensitive technology to 
a foreign nation without informing Congress, without engaging 
in dialog with us, without congressional review, would 
constitute a dangerous and blatant violation of the Atomic 
Energy Act.
    So, the interim report that was issued by Chairman 
Cummings' staff last month underscored that one of the chief 
proponents of this so-called Middle East Marshall Plan was 
former National Security Advisor Michael Flynn, who obviously 
pleaded guilty to providing false information to the FBI 
regarding his foreign contacts, and other former and current 
Trump associates at the White House who have been involved in 
this allegedly to push the Saudi Arabia nuclear transfer: 
Thomas Barrack, who was President Trump's Inaugural Committee 
chairman; and also Jared Kushner, the President's son-in-law, 
and also a senior advisor to the President.
    We have as a committee FOIA requests in and requests 
directly to seven different agencies. As well, the Government 
Accountability Project--they do great work--they have requests 
in to the Department of State, Department of Defense, the 
Central Intelligence Agency, Department of Commerce, Department 
of Energy, and the Treasury Department. We have requests in to 
those agencies, as well as the White House.
    So far, we got zero--zero--nothing from any of those 
agencies, nothing from the White House.
    So your mission, as you described it, is really to provide 
information that the American people should know, and this is 
certainly within that ambit. I am just wondering what your 
reasoning or what your thinking might be for why, with all 
these requests on such an important issue, we have zero from 
the White House and zero FOIA responses from all of those 
agencies, seven of them.
    Ms. Pustay. Well, I cannot speak to any particular 
individual FOIA request because I do not know any of the 
background as to their handling. Our----
    Mr. Lynch. But any document at all. I understand that you 
can pick and choose, say this is sensitive or we cannot do 
this, come up with a reason. They have not given us a reason, 
either. So we basically got silence from seven agencies and the 
White House.
    Ms. Pustay. Well, again, I just do not have any background 
on the handling of those individual requests. I am happy to 
look into it for you, if you would like. Our mission, our 
statutory mission is to encourage compliance with the FOIA, 
just to correct the articulation of that, and we do a number of 
things to help make sure that agencies are trained to be able 
to understand their legal obligations under the FOIA, that they 
have guidance from us as to ways to improve their 
administration of the FOIA. We share best practices, we 
encourage use of technology. All of those things are part of 
how we carry out our statutory----
    Mr. Lynch. Okay, I understand, I understand. That is the 
same answer you gave to everybody else.
    So, last month the non-partisan government watchdog 
organization, Citizens for Responsibility and Ethics in 
Washington, actually filed suit on behalf of the Government 
Accountability Project to seek those documents, to get the 
answers to their FOIA requests. According to the complaint, all 
those Federal agencies involved have now gone silent, failing 
to engage in any further communication.
    So this is not simply an unwillingness to give us the 
documents. It is an unwillingness to respond. Is that 
consistent with your understanding of how they should be 
conducting their----
    Ms. Pustay. I cannot speak, obviously, to the particular 
request and the responses that you have gotten or that the 
requester got from those particular agencies. What I can tell 
you is that, of course, our guidance to agencies is to 
acknowledge requests. Every requester is entitled under the 
statute to have a tracking number----
    Mr. Lynch. Could you encourage them to respond? Could you 
encourage them to respond? That would be great. That would 
    Ms. Pustay. I certainly can.
    Mr. Lynch. Thank you.
    I yield back.
    Chairman Cummings. Mr. Comer, five minutes.
    Mr. Comer. Thank you, Mr. Chairman.
    I wanted to focus my questioning on the Department of the 
Interior. So, Ms. Spector, how many individuals specifically 
work on FOIA at the Department of the Interior?
    Ms. Spector. I do not have that information at this time. 
Part of my mission in the newly created departmental FOIA 
office is to get my arms around that information and to 
understand whether our FOIA offices are adequately staffed.
    Mr. Comer. Okay. Does each bureau at the Department of the 
Interior have its own FOIA office?
    Ms. Spector. Well, it is interesting that you ask that 
question. The Secretary's order that I referred to in my 
opening statement requires all of the bureaus to have a FOIA 
officer. So my understanding and belief is that FOIA processing 
occurs at all of our component bureaus, and we are looking to 
elevate the position of the people that do that work.
    Mr. Comer. Have you determined whether you are adequately 
staffed to handle the FOIA requests that are coming in at DOI?
    Ms. Spector. I could say quite frankly we are not 
adequately positioned to do that work at this time, and staff 
is only one component of what I believe we need to do to 
improve our FOIA program. We also need to make improvements in 
our technology, as well as improving our standard operating 
procedures and policies.
    Mr. Comer. Roughly how many FOIA requests did you get in 
2018? Do you know? At the Department of the Interior.
    Ms. Spector. You know, I am embarrassed to say I do not 
know the answer to that question. I am sure my staff has it on 
their fingertips and will happily provide that.
    Mr. Comer. So you would not know how the number of FOIA 
requests in 2017 and 2018 under the Trump Administration would 
compare to the number of FOIA requests that you received during 
the Obama Administration?
    Ms. Spector. I would be able to answer that question, sir. 
Since Fiscal Year 2016, the Department overall has experienced 
a 30 percent increase in incoming FOIA requests, similar to 
what my colleague from EPA attested to. The Office of the 
Secretary FOIA Office has been particularly hard hit with a 210 
percent increase during that period.
    Mr. Comer. Do you know where these increases are coming 
from, which particular groups? Are they advocacy groups? Are 
they private citizens? Media? Do you have any idea?
    Ms. Spector. I could speculate on that point, but I would 
underscore that the Department is not concerned with who the 
FOIA requests are coming from. I mean, we endeavor to respond 
in a timely, comprehensive manner to all requesters regardless 
of their identity.
    Mr. Comer. Do you prioritize the FOIA requests when they 
come in? For example, if it is a major news network, is that 
pushed ahead of the stack or behind the stack compared to if it 
is a FOIA request from a citizen in Montana?
    Ms. Spector. Well, as a general matter, we process FOIA 
requests on a first-in/first-out basis, and there are certain 
provisions in the FOIA that provide for expedited processing, 
and also provide for a fee waiver for requesters who qualify as 
representatives of the news media. We apply the provisions of 
the FOIA accordingly.
    Mr. Comer. On average, how long does it take when you get a 
FOIA request to be able to review and respond to the request?
    Ms. Spector. Well, the answer is more nuanced in that we 
process our incoming requests pursuant to track. There is a 
simple track, a normal track, a complex track, complex being 
the requests that are likely to result in the collection of 
large amounts of documents. For example, requests that are in 
our simple track, by our own policy, we endeavor to respond to 
within five working days.
    Mr. Comer. Do you track with requests of--if this is the 
same person doing a FOIA request every day? Are they red 
flagged? How does that work? I know in the past I have been--a 
previous job before I came here was harassed by political 
opposition groups, bloggers, things like that. I did not know 
whether there was a system in place to determine the validity 
of the person requesting the FOIA request.
    Ms. Spector. No, sir. And again, we do not process our 
requests based on the identity of the requester. I would say we 
have a substantial number of what we call frequent flyers, and 
we process their requests on a first-in/first-out basis.
    Mr. Comer. Thank you.
    Chairman Cummings. The gentleman's time has expired. Thank 
    Mr. Rouda?
    Mr. Rouda. Thank you, Mr. Chairman.
    Mr. Epp, there are about 1,700 FOIA requests outstanding 
from the most recent report. That actually puts EPA in the 
bottom 10 percent. Is this a resource issue, a manpower issue, 
or both?
    Mr. Epp. That is a topic that we are currently analyzing, 
and that is part of the reason for the reorganization of the 
National FOIA Office, to create a centralized office to take a 
look at those sorts of issues.
    One of the things that we have recently done that we did 
within the last calendar year was upgraded the document review 
processing software to add certain features that will increase 
the ability to review similar documents together.
    Mr. Rouda. So is it a resource issue, then, or a manpower 
issue? I mean, if you had enough people and resources, we could 
clear this up pretty quickly, right? Or if it is a process 
issue, that tends to be a lack of management and leadership 
issue. So which one is it?
    Mr. Epp. The agency has dedicated more resources to FOIA 
processing this year, including authorizing increased hiring in 
my office. We have just on-boarded those new hires, new hiring 
in the Administrator's Office, and standing up a Tiger Team of 
document reviewers in the Administrator's office. So we are 
dedicating more resources to the effort, and part of what I am 
doing is trying to analyze exactly how much of it is resource 
issues, how much of it is processing issues and things like 
    Mr. Rouda. Well, we are a few years into the 
Administration, so hopefully that will happen soon. But let me 
ask you this: President Trump's budget with a 31 percent cut in 
the EPA, do you support that cut?
    Mr. Epp. Like I said, the agency dedicated more resources 
to FOIA in the last----
    Mr. Rouda. But you have a limited budget. Do you support 
the 31 percent cut to the EPA?
    Mr. Epp. Our----
    Mr. Rouda. Do you support the 31 percent cut to the EPA?
    Mr. Epp. We will work with Congress to implement the budget 
that you pass.
    Mr. Rouda. But do you support the President's 31 percent 
cut to the EPA?
    Mr. Epp. We will work with Congress on the budget that 
Congress passes.
    Mr. Rouda. I also note that you have over 800 openings in 
the EPA that have not been filled. If those seats were filled, 
would that not help address this issue?
    Mr. Epp. So, I do not have oversight or vision on all of 
the hiring needs and where the hiring is across the agency. If 
that is something that you would like a response on----
    Mr. Rouda. My concern is that there are roughly 14,000 
employees at the EPA; 8,000 of them are eligible for retirement 
through 2021. So you take that, coupled with the 800-plus open 
seats, I cannot help but think that the EPA could meet many of 
its obligations, including FOIA requests, if it was properly 
staffed up according to the ability it has, not to mention with 
all of these potential retirements. Is the EPA prepared to hire 
people so it can meet its obligations.
    Mr. Epp. So, like I mentioned, within my office we were 
authorized to hire, and we completed hiring over the last year 
and are now----
    Mr. Rouda. So if you were authorized to hire more 
individuals that could manage the FOIA requests, you could 
definitely address the backlog; correct?
    Mr. Epp. We on-boarded and are currently on-boarding some 
of those hires. You know, with any hiring initiative there is 
also a training-up time, an integration----
    Mr. Rouda. Again, we are two years into the Administration. 
We have 1,700 FOIA requests that have not been met. So if 
people were hired, it seems like that would solve the problem.
    I also want to call your attention to last year the 
Republican and Democratic staff on this committee interviewed 
EPA Chief of Staff Ryan Jackson, who stated--in talking about a 
specially created team he said, ``Politically charged FOIA 
    Is there a special team or any version of it that is still 
existing at the EPA that is reviewing these types of FOIA 
    Mr. Epp. So, the FOIA Expert Assistance Team is in my 
office, and their charge since 2013 has been to work on the 
most challenging, complex, and high-profile FOIA requests that 
the agency receives, including such things as Bristol Bay, Gold 
King Mine----
    Mr. Rouda. Do you personally review them?
    Mr. Epp. Yes.
    Mr. Rouda. So they all come--basically, the buck stops with 
you? You personally make the decision?
    Mr. Epp. That team I review and I supervise, yes.
    Mr. Rouda. Thank you, Mr. Chairman. I yield back.
    Chairman Cummings. Mr. Gosar, five minutes.
    Mr. Gosar. Thank you, Mr. Chairman.
    I thank the Chairman for having this hearing on FOIA. But I 
also find it odd that my friends across the aisle are 
complaining about the FOIA requests when this Administration 
was able to reduce some of the FOIA backlog by 3.2 percent. I 
do not remember hearing anything when groups were sending FOIA 
requests to the Obama Administration on the IRS scandal, 
Benghazi, Fast and Furious, and the list goes on, not a peep. 
Since my friends across the aisle have a newfound respect for 
FOIA, I ask them to join me in urging the DOJ to release the 
requested FOIA documents to groups like Judicial Watch that 
have requested documents that deal with the IRS scandal, Fast 
and Furious, all the documents reporter Sharyl Attkisson has 
requested that deal with the Obama Administration spying on 
her, and the FISA warrants used to spy on Carter Page. If my 
friends across the aisle truly care about transparency, they 
would join me in pressuring the DOJ to release the requests of 
FOIA documents; unless, of course, this is a charade and they 
only care because it is Donald Trump as the president.
    Ms. Spector, I did not hear the answer. Did some of the 
FOIA officers at the DOI attend trainings offered by the Office 
of Government Information Services?
    Ms. Spector. I do not know specifically, but I suspect that 
is the case, yes.
    Mr. Gosar. Their mantra is Working Smarter, Not Harder. So 
sometimes an educational process of how to actually triage 
things, that might be a very helpful application.
    Let me ask you another question. Can you give me a little 
bit more idea of specifically what type of FOIAs are coming in? 
Have they changed in nature? Are they more from news agencies? 
Are they more complex in litigation? Can you give me a 
breakdown of how that maybe has changed over the last two 
    Ms. Spector. Yes. And again, I cannot really speak to the 
identity of FOIA requesters, but I can tell you that since 
Fiscal Year 2015 our amount of complex FOIA requests--that is, 
requests that will result in the production of a large amount 
of documents and records--has gone up 55 percent.
    Mr. Gosar. So even with a very enabled work force, that 
kind of change for complexity makes it very hard to comply, 
would it not?
    Ms. Spector. It is part of the challenge that we face. It 
is a large part of the challenge that we face at Interior. 
Another related challenge is that because we are not able to 
provide timely responses to a large number of FOIA requesters, 
we have engendered a substantial increase in what we call FOIA 
non-response litigation where the requester is suing not based 
on an alleged illegal withholding but simply because we have 
not responded in a timely manner, and that produces a snowball 
effect on our situation because those cases are essentially 
glorified FOIA processing under the auspices of the court, and 
we are under increased pressure to move those requests to the 
front of the line, which further impacts the rest of the FOIA 
    Mr. Gosar. So is there some way--you know, when we are on a 
battlefield, we have a triage-type system. Is there a way to 
look at these documents as they are coming in that could 
actually facilitate a better triage allocation where you may be 
having somebody monitoring the atmosphere at the time of 
discovery that maybe puts a kind of emphasis or a highlight on 
an issue, that maybe somebody is reviewing these at the front 
end that may speed up that system? Is there some type of triage 
system that could work along those lines?
    Ms. Spector. Yes, and that is certainly part of the 
comprehensive effort that we are endeavoring to employ at the 
Department. We are using a more expensive technology to process 
these large requests. That technology also enables us to 
leverage requests that are for the same or similar types of 
documents. And we are trying to focus more in our processes and 
protocols on meeting our commitment under the FOIA.
    Mr. Gosar. Yes. And, Mr. Epp, real quickly, I am glad that 
you made the comment about the budget, because the budget is 
our deal. Allocation of funds is Congress' deal. So we ought to 
be the ones stepping up and doing that process forwardly.
    Thank you, Mr. Chairman.
    Chairman Cummings. Ms. Cortez?
    Ms. Ocasio-Cortez. Thank you, Mr. Chair.
    Ms. Pustay, as Director of Information Policy, you review 
the various reports that agencies prepare as part of their FOIA 
responsibilities; correct?
    Ms. Pustay. Right.
    Ms. Ocasio-Cortez. Do you agree that it is important for 
all of us to have current information on the agency compliance 
with FOIA?
    Ms. Pustay. Of course.
    Chairman Cummings. Keep your voice up.
    Ms. Pustay. Sure.
    Ms. Ocasio-Cortez. And I think that is why we agree that is 
why Congress added these requirements that agencies report data 
by certain deadlines each year. In fact, the law requires 
agencies to provide the annual report on FOIA to DOJ by 
February 1st. Today is now March 13th. It is six weeks past the 
reporting deadline.
    My question to you is how many agencies have provided their 
reports to the DOJ by February 1st?
    Ms. Pustay. Oh, this year is quite the anomaly in terms of 
reporting for a very obvious reason. We had a government 
shutdown that lasted more than 35 days. All of OIP was 
furloughed for 35 days. So we have an extensive process where 
we clear the annual FOIA reports from agencies and work with 
them to get the reports----
    Ms. Ocasio-Cortez. So----
    Ms. Pustay. So there is necessarily a delay this year. But 
I am happy to tell you we have almost--over 90 reports have 
already been cleared for----
    Ms. Ocasio-Cortez. So 90 reports have been cleared. Great. 
And it is completely understandable that the shutdown would 
delay that. That is why we try to avoid shutdowns.
    Do you know how many outstanding reports have missed that 
    Ms. Pustay. Oh, sure. We have been working with all the 
agencies to catch up on their work and their reporting to us, 
and we fully expect to have all the reports posted actually 
fairly soon.
    Ms. Ocasio-Cortez. Okay, great. So has the DOJ made every 
annual report it has received so far from an agency available 
on its website?
    Ms. Pustay. When we clear our reports, after we have done 
our review, the agency has to prepare their report for posting, 
and that requires a process of coding the document. As soon as 
the agency posts the document, then we in turn link it to our 
central website on DOJ's website. So we are literally posting 
reports as we speak.
    Ms. Ocasio-Cortez. Thank you. Okay, and that is great. Good 
to know that that process is on its way.
    Mr. Epp, the EPA just posted its report yesterday. When did 
you provide that report to the DOJ?
    Mr. Epp. So, I do not recall when we provided the first 
draft of the report to DOJ.
    Ms. Ocasio-Cortez. Okay.
    And, Ms. Pustay, what is DOJ doing to ensure that the 
agencies are making these annual reports accessible to the 
public in a timely manner?
    Ms. Pustay. Right. As I said, this year is quite the 
anomaly. I think if you looked back at any of the other years, 
we are very proactive in terms of reaching out to agencies, and 
we have really quite a refined process now. It is not an issue 
at all in a normal year.
    Ms. Ocasio-Cortez. And that is good to know.
    One of my questions, too, is what would DOJ do if an agency 
simply refused to provide the annual report?
    Ms. Pustay. That has not been a problem at all. Agencies 
work with us very well and they are fully aware of their 
obligation to get their annual report in to us.
    Ms. Ocasio-Cortez. Are there any consequences in case that 
does happen?
    Ms. Pustay. It is a hypothetical that really I am not 
worried about because we have no issue with getting the reports 
from the agencies. We work with them, and then we get them 
posted every year.
    Ms. Ocasio-Cortez. All right, great. Thank you very much.
    I yield my time.
    Chairman Cummings. Mr. Higgins?
    Mr. Higgins. Thank you, Mr. Chairman.
    Mr. Chairman, the Committee on Oversight and Reform 
majority seems to be attempting to imply that the Trump 
Administration is opaque and closed off to Freedom of 
Information Act requests, whereas actual data shows that the 
President's administration has been very responsive to the 
record number of FOIA requests and is actively working to 
reduce the nearly 10-year Freedom of Information Act backlog at 
some agencies.
    Ms. Pustay, OIP found that the government received a record 
number of FOIA requests in 2017; correct?
    Ms. Pustay. Yes.
    Mr. Higgins. In fact, can you clarify for Americans 
watching that the government received over 818,000 FOIA 
requests in 2017 alone, an incredible increase from 2016 in 
number? This was the first year, in fact, that the government 
received over 800,000 requests. Is that correct?
    Ms. Pustay. That is correct, and we are on track, I think, 
to far exceed that number for Fiscal Year 2018.
    Mr. Higgins. And how have you managed to deal with such a 
volume of requests? Were you and your staff surprised at the 
number of FOIA requests that has been received since President 
Trump took office?
    Ms. Pustay. Well, the increase in incoming FOIA requests 
has actually been taking place over quite some time, a much 
longer time than two years.
    Mr. Higgins. The backlog was 10 years? I do not mean to 
interrupt you but just to clarify for those watching. The 
backlog was--you had about a 10-year backlog?
    Ms. Pustay. No. What I am saying is that the increase in 
incoming requests has been occurring steadily over the years, 
and each year agencies are really struggling to try to meet 
that increased demand and increasing their processing, only to 
see the following year even more requests coming in. I think I 
attribute it to just an increased interest in using the FOIA as 
a means of becoming more engaged with their government.
    Mr. Higgins. Thank you for that clarification. Despite the 
number of requests that have been received since 2017, since 
the President took office, am I also correct in saying that the 
government has processed more FOIA requests than they received, 
and that the number of backlogged requests has actually 
    Ms. Pustay. The numbers you are referring to are from 
Fiscal Year 2017, which is where we have our last 
governmentwide numbers. And, yes, in Fiscal Year 2017 the 
government overall reduced the backlog, which was a nice 
accomplishment, and increased its processing.
    As I mentioned, agencies are doing a lot to increase their 
processing to keep up with the demand of the public for 
information from the government.
    Mr. Higgins. So you feel confident confirming to America 
today, Madam, that agencies are making an effort, a good-faith 
and determined effort to process FOIA requests and reduce 
    Ms. Pustay. Agencies are definitely making a good-faith 
effort to process the overwhelming number of requests that are 
coming in every day.
    Mr. Higgins. Thank you, Madam.
    Ms. Spector and Mr. Epp, thank you for your service to your 
country and appearing before the committee today.
    Mr. Chairman, since January 2017, there has been quite an 
orchestrated effort to obstruct and resist our duly elected 
President's administration, an incredibly active movement 
nationwide, and Americans that I have spoken to look at the 
number of FOIA requests as perhaps a legitimate tool that 
should be available in a representative republic of sovereign 
states that has perhaps been weaponized against our current 
    I yield my remaining 50 seconds to the Ranking Member.
    Mr. Jordan. I yield back.
    Chairman Cummings. Ms. Plaskett?
    Ms. Plaskett. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    Ms. Pustay, the Office of Legal Counsel is responsible for 
providing legal advice to the executive branch. Is that 
    Ms. Pustay. Yes.
    Ms. Plaskett. Otherwise known as OLC. And that advice is 
usually given through memorandum, is it not?
    Ms. Pustay. I do not know if I want to characterize that it 
is usually given through memorandum.
    Ms. Plaskett. But there are memorandum that are done?
    Ms. Pustay. Yes.
    Ms. Plaskett. And those memorandum really outline what the 
Office of Legal Counsel's opinions are with regard to specific 
issues that the executive branch may be requesting.
    Ms. Pustay. They provide legal advice, yes, exactly.
    Ms. Plaskett. DOJ, the Department of Justice, generally 
considers OLC advice to be binding on those agencies. Is that 
    Ms. Pustay. No, I do not think that is correct. OLC 
provides legal advice to agencies, who then incorporate that 
advice into their decisionmaking.
    Ms. Plaskett. Okay. So it does not bind an agency to the 
    Ms. Pustay. They give legal advice to an agency.
    Ms. Plaskett. Got you. And with that, there does, however, 
seem to be a secrecy with regard to OLC memos, which have long 
been the subject of controversy in terms of them being 
available to the public. Would you say that that is correct?
    Ms. Pustay. No. I understand that the public is very 
interested in OLC memorandum, and OLC understands that public 
interest as well, and they have an established publication 
review process where they review their memorandum and post 
those that they can on their website.
    Ms. Plaskett. So how many memorandum per year would you say 
that they produce?
    Ms. Pustay. I do not know about per year, but I know----
    Ms. Plaskett. On average?
    Ms. Pustay. Well, they have over 1,000 OLC opinions on 
their website.
    Ms. Plaskett. Well, that is going back 20 years, 30 year or 
    Ms. Pustay. It is quite a nice----
    Ms. Plaskett. But what would you say per year is the 
average of opinions that they write?
    Ms. Pustay. I am sorry, I just do not have it.
    Ms. Plaskett. Would you be surprised to understand that 
there are over 200 OLC opinions which have not been released?
    Ms. Pustay. No, it does not surprise me because, as I said, 
OLC opinions are legal advice to an agency. So they are 
protectable under the FOIA--under the attorney----
    Ms. Plaskett. So if the advice is taken and the 
Administration acts on that advice, how about releasing an 
opinion from 2003, going back 15 years, which has already been 
enacted? Would that chill or inhibit discussion taking place in 
the government by not releasing that information at this time?
    Ms. Pustay. The age of the opinion and the circumstances 
surrounding the topic that is addressed in an opinion would 
definitely be factors that would be looked at. All of that is 
actually laid out by OLC in their procedures for publishing 
their opinions.
    Ms. Plaskett. So if the concern is for the public to get 
that information which may be deliberation that OLC has had, or 
whether or not positions are factors involved in making 
decisions and legal advice, some of the opinions have already 
been published, or through leaked opinions online. But DOJ 
still asserts that those opinions are privileged and cannot be 
    What would inhibit the DOJ from releasing opinions which 
are already out there so that the public can be sure that the 
opinions which have been leaked are, in fact, the opinion of 
    Ms. Pustay. Well, we have very strong protection for 
information that is covered by a discovery privilege like the 
attorney-client privilege. Courts have recognized that that 
applies after the advice has been given, and it would certainly 
    Ms. Plaskett. Even after it has been acted upon or has been 
changed and the Administration is no longer using that opinion? 
What would be the reason for withholding it at that point?
    Ms. Pustay. The contours of the attorney-client privilege, 
as well as the deliberative process privilege, another primary 
reason why OLC opinions are protected----
    Ms. Plaskett. I know that can take me a whole other five 
minutes of questioning if we discussed the deliberative process 
    Ms. Pustay. There was a case that went to the Supreme Court 
actually early in my FOIA career involving deliberative process 
privilege, and the very issue presented was when a decision is 
over, does the deliberative process privilege fall away, and it 
is actually an issue that went all the way to the Supreme 
Court, which ruled that, no, the privilege protection continued 
on. And the point that----
    Ms. Plaskett. That is not to say that DOJ does not release 
opinions. All of the opinions involve some deliberative 
process; correct?
    Ms. Pustay. Yes, yes.
    Ms. Plaskett. So you do release some and not others.
    Ms. Pustay. Yes, absolutely.
    Ms. Plaskett. So the factors that you are using have 
nothing to do with the deliberative process as a theory, but 
other factors that you have determined whether or not the 
import of what is in that opinion----
    Ms. Pustay. I think the OLC lays out in the guidance on 
their website the factors that they look at to make releases of 
opinions, and obviously a big part of that is the public 
interest in the topic.
    Ms. Plaskett. I yield back. Sorry.
    Chairman Cummings. Thank you.
    Mr. Jordan?
    Mr. Jordan. Thank you, Mr. Chairman.
    Ms. Pustay, I will go back to where Mr. Higgins was. How 
many FOIA requests governmentwide were there in 2017?
    Ms. Pustay. Over 800,000.
    Mr. Jordan. Over 800,000. And is that more than the 
requests in 2016?
    Ms. Pustay. Yes.
    Mr. Jordan. How much more?
    Ms. Pustay. We have a chart in our--we have a summary that 
we create every year of annual FOIA reports, and we have all 
the numbers there. I think if you look at the chart you see a 
nice steady incline of incoming FOIA requests really starting 
since 2009.
    Mr. Jordan. And I am looking at that chart right now.
    Ms. Pustay. Okay.
    Mr. Jordan. It looks to me in 2016 there were 788,000, and 
in 2017 818,000, 40,000 more FOIA requests governmentwide in 
    Ms. Pustay. That sounds right.
    Mr. Jordan. All right. So more requests, trending up, has 
been trending up, but obviously 40,000 more just in the first 
year of the new administration. And what about the backlog? 
What happened with the backlog of requests that was there? Did 
    Ms. Pustay. Well, in Fiscal Year 2017 the backlog did go 
down by, I think, 3 percent. That was primarily due to the 
efforts of DHS in reducing its backlog. The backlog 
governmentwide is really attributable to a few of the really 
big agencies that get incredibly large volumes of requests.
    Mr. Jordan. DHS and Justice?
    Ms. Pustay. DHS, Justice, State. Again, we have that in our 
    Mr. Jordan. Okay. But overall----
    Ms. Pustay. But overall there was a reduction.
    Mr. Jordan. Overall 40,000 more requests in 2017, and a 
reduction in the backlogs that had been present, in overall 
    Ms. Pustay. Overall.
    Mr. Jordan. So it is an improvement.
    Ms. Pustay. That is right.
    Mr. Jordan. Now, that is not to say every agency is doing 
wonderful. There may need to be improvement in some specific 
agencies, but overall that is pretty good for government.
    Ms. Pustay. Well, I think especially with backlogs. There 
were 85 agencies that had a backlog of 100 or less. So when you 
think across the government, the issue of backlogs is a quite 
different picture and I think a very positive picture for many 
    Mr. Jordan. Of that 40,000, which agencies had the biggest 
increase? It was the ones you said before? It was State, 
Justice, and DHS?
    Ms. Pustay. Yes.
    Mr. Jordan. That is where the biggest increase happens?
    Ms. Pustay. Yes.
    Mr. Jordan. Okay. And were those the same agencies that had 
the largest backlog, or not?
    Ms. Pustay. Yes. Usually there is an exact and 
understandable relationship, absolutely.
    Mr. Jordan. Okay. And is there a reason why we saw 40,000 
more? Did you analyze the data? Is there any reason why there 
was 40,000 more requests in the first year?
    Ms. Pustay. We have been looking at this issue for many 
years, and as I mentioned before to one of your colleagues, the 
best I can come up with is that I think there is a lot of 
interest in the public in what the government is doing, and so 
as a result there is an increase in FOIA requests.
    Mr. Jordan. For a government that is as big as our 
government, unfortunately. I wish it was smaller in many ways. 
If you have big government, there are going to be people 
interested in looking at it and asking for information.
    How does 2018 look? When are we going to get those numbers?
    Ms. Pustay. We will get those numbers shortly. As I was 
discussing, we are in the process of finalizing the intake of 
the annual FOIA reports, and then we will be able to----
    Mr. Jordan. Can you give me a preliminary assessment?
    Ms. Pustay. My prediction is that there definitely is going 
to be yet another increase in incoming----
    Mr. Jordan. I figured.
    Ms. Pustay [continuing]. incoming requests. I am hopeful 
that we will have an increase in processing, because the 
challenge for agencies is to try their best to keep up. And 
then I am predicting that the backlog might increase as well, 
as a result of the increase in incoming.
    Mr. Jordan. Do you think the increase in 2018 is going to 
be more than the 40,000 we saw in 2017?
    Ms. Pustay. I do not--I just am not sure yet.
    Mr. Jordan. When will we get those again?
    Ms. Pustay. Soon, relatively soon. As I said, we have over 
90 agencies where we have the numbers cleared, so within the 
next month or so we will have our figures, and then we will 
post them like we normally do with a summary.
    Mr. Jordan. If the backlog--you said the backlog may not be 
an improvement like it was in 2017. It may trend the other way.
    Ms. Pustay. Yes.
    Mr. Jordan. Is it a small increase? What is your----
    Ms. Pustay. I am predicting probably a larger increase. 
Again, this is just a prediction because we do not have the 
numbers yet. Once we have the summary and have the numbers, 
obviously we are going to post them on our website like we 
always do.
    Mr. Jordan. I forgot. I was going to yield to my friend. I 
will yield what remaining time I have.
    Mr. Meadows. I thank the gentleman.
    One question, Ms. Pustay. You said you keep track of how 
people respond. Do you have agency by agency the budget they 
spent on FOIA and the number of pages that they actually get 
out the door so we can tell how efficient an agency is?
    Ms. Pustay. We do not keep track of the number of pages, 
but we do keep track--every agency reports in their annual FOIA 
report their costs and the personnel that are used every single 
year for FOIA. So that is in every agency's annual FOIA report. 
You can look back many, many years, and we summarize that in 
our summary as well.
    Chairman Cummings. Thank you very much.
    I will now ask a few questions.
    Ms. Spector, significant concerns have been raised about 
the lack of transparency of meetings held by Acting Secretary 
David Bernhardt. On February 20, 2019, Mr. Bernhardt sent a 
letter to Natural Resources Committee Chairman Raul Grijalva, 
and this is what he said, and I quote: ``I have inquired with 
the Department of Interior's Office of the Solicitor and have 
been advised that I have no legal obligation to personally 
maintain a calendar. Further, no agency guidance exists 
recommending that I create or retain one. I have not personally 
maintained a calendar for years, and I have no intention of 
suddenly doing so now.'' Did you hear me? End of quote.
    Is this true? Does Acting Secretary Bernhardt not keep a 
calendar of his meetings and activities?
    Ms. Spector. I was not involved in providing legal advice 
around this issue, but I am aware that Acting Secretary 
Bernhardt's calendars, there are calendars that we proactively 
post on our website, just as we did with Secretary Zinke's 
calendars, because the public is interested in that 
information, and we received more than three FOIA requests for 
that material. So we proactively post it on the website.
    Chairman Cummings. Well, Acting Secretary Bernhardt also 
wrote, and I quote: ``Numerous people create calendar entries 
on what can be labeled my calendar to maintain a schedule for 
the organization of daily appointments, both personal and 
official.'' End of quote.
    How are appointments added to the Secretary's schedule? Do 
you know?
    Ms. Spector. I am speculating. I think it is probably 
pretty accurate. I assume that his administrative assistant and 
other support staff provide that function for him.
    Chairman Cummings. So who at the Department has the ability 
to add appointments to the schedule of the Acting Secretary? Do 
you know?
    Ms. Spector. I am sorry, there was movement in the back and 
I did not clearly hear what you said.
    Chairman Cummings. Who at the Department has the ability to 
add appointments to the schedule of the Acting Secretary?
    Ms. Spector. I am familiar with a process of----
    Chairman Cummings. You do not know?
    Ms. Spector. I do not know. Thank you, sir.
    Chairman Cummings. Does the calendar for the Acting 
Secretary get deleted at the end of each day? Do you know that?
    Ms. Spector. I do not know that.
    Chairman Cummings. Is it possible this is happening and you 
do not know about it? That is, the deletion of the calendar or 
the entries.
    Ms. Spector. I have some familiarity with the issue that 
you are raising and understand that the Solicitor's Office in 
the Department is working with the records officer in the 
Department to determine what has occurred there and whether it 
is consistent.
    Chairman Cummings. How long have you been in the position 
    Ms. Spector. I am sorry. Say that again?
    Chairman Cummings. How long have you been in the position 
you are in?
    Ms. Spector. For two months, sir.
    Chairman Cummings. Okay. Has any Interior employee ever 
been tasked with recreating the calendar of the Acting 
Secretary by piecing together drafts of Googled documents or 
using other records of meetings?
    Ms. Spector. Not to my knowledge.
    Chairman Cummings. Has any Interior employee ever been told 
to stop recreating the calendar of the Acting Secretary?
    Ms. Spector. Again, not to my knowledge.
    Chairman Cummings. How do you respond to FOIA requests for 
information about meetings attended by Acting Secretary 
    Ms. Spector. Precisely the way we do all FOIA requests. 
They are processed as a general matter on a first-in/first-out 
basis, and one distinction with calendars is that there has 
been so much public interest in those materials for our senior 
officials that many are posted, affirmatively posted on our 
    Chairman Cummings. So whose records do you search to 
respond to requests about the Acting Secretary's calendar?
    Ms. Spector. I am sorry. Again, I did not hear.
    Chairman Cummings. Whose records do you search to respond 
to requests about the Acting Secretary's calendar?
    Ms. Spector. Again, I do not specifically know the answer 
because I have not performed that task, but I assume that it is 
his electronic calendar entries that are prepared by his 
administrative staff.
    Chairman Cummings. All right. CNN reported last week that 
the calendars posted on the website of the Department of the 
Interior are missing information. For example, a meeting on the 
schedule posted for Acting Secretary Bernhardt for September 
22d, 2017 includes an entry that says, quote, ``A meeting to 
discuss energy issues,'' end of quote. It lists no visitors. 
However, CNN reported that Interior visitor logs showed that 
the Acting Secretary actually signed in Jack Gerard, then CEO 
of American Petroleum Institute.
    Are you aware of any other calendars or calendar entries on 
the website of the Department of the Interior Acting Secretary 
Bernhardt or any senior official that are missing information?
    Ms. Spector. No, I am not.
    Chairman Cummings. Every senior official, including Acting 
Secretary Bernhardt, should be making and preserving a 
transparency record of their meetings and other activities so 
that the American people know who is influencing policies.
    I yield now to Mr. Cloud for five minutes.
    Mr. Cloud. Thank you.
    With all the talk about data, we had our team go ahead and 
compile it for you. And, yes, it does confirm what you are 
saying, a general upwards trend. The blue is the requests. The 
green is what has been processed since 2010. The red is what 
has been the backlog. And you can see that we are pretty much 
within norms, this Administration has been, with the trends. 
Actually, there has been some progress in the sense that more 
FOIA requests were processed over the last year than were 
requested. I think that is good news.
    Really, the only outlier in the backlog generally has been 
11 to 15 percent, with the only outlier being the year 
following the IRS scandals when the IRS was targeting 
conservative groups.
    I think congratulations, I guess I would say, on the 
general picture of processing FOIA requests. I think there are 
some things that probably do need to be addressed or jobs to 
begin this kind of stuff.
    So, Deputy Chief Spector, your written testimony says that 
you, or the Interior Department I should say, proposed a change 
to apply monthly per-page processing limits to requests 
involving a large number of responsive records to allow 
processing of other requests. It is citing vast quantities of 
materials needed in some of these requests. Could you describe 
what is considered vast quantities?
    Ms. Spector. Oh, absolutely. There is a 1990 D.C. Circuit 
Court opinion that coined the phrase ``vast quantity'' that we 
endeavored to codify in our proposed regulations. There is not 
a precise definition. I could not tell you precisely the number 
of pages that would qualify as a vast quantity, but since 1990 
there has been a developed body of case law that has created 
the general parameters that surround vast quantity of 
materials, and to the extent this proposed change is 
incorporated into our final rule, we would look to the 
sideboards in that case law to make our determination.
    Mr. Cloud. Okay. So as each case comes in, you are looking 
at case law? Is that what you are saying? To make the 
    Ms. Spector. I am sorry, I did not hear you.
    Mr. Cloud. You are looking at case law as each individual 
request comes in to determine? You do not have a benchmark I 
    Ms. Spector. I guess what I am saying is that the vast 
quantity of materials does not lend itself to a precise number.
    Mr. Cloud. Okay. If you do get a request that is requesting 
a large amount of information, how do you go about prioritizing 
requests just in general? But also if there is a large request 
and you have limited capacity, are you processing that 
request--like let's say 1,000 pages would be considered a vast 
quantity, do you process a little of that every month?
    Ms. Spector. Well, I will say that----
    Mr. Cloud. Do you say, oh, we are only going to do a 
portion of the big requests?
    Ms. Spector. I will say that I do not believe that 1,000 
pages is not a vast quantity. I think 1,000 pages is actually a 
pretty garden-variety quantity that we are encountering.
    But we have, in the context of our litigation, FOIA non-
response litigation, we have applied a protocol where we 
process a certain number of pages each month in order to meet 
our obligations to all of the litigants. So we have 90 to 110 
pending FOIA non-response cases, and all of those courts are 
asking us when are you going to get the request satisfied, and 
how many pages can you supply to the requester each month? So 
when we get a request that involves thousands of pages of 
documents, we make monthly episodic releases in order to get 
    Mr. Cloud. Yes, that is what I was wondering.
    Ms. Pustay, the performance across the agency has been 
varied. Is there some sort of mechanism in place for developing 
best practices and communicating best practices across 
    Ms. Pustay. Oh, sure. We do that in a whole bunch of 
different ways. We have a workshop series that we literally 
call our best practices workshop series where every year we 
identify a topic that we think is important to address, and we 
have agencies that have demonstrated success in that area on a 
panel where they can share their best practices in achieving 
success in that area.
    Our very first best practices workshop was on reducing 
backlogs and improving timeliness because that is always a 
perennial challenge----
    Ms. Hill.
    [presiding] The time of the gentleman has expired, if you 
want to wrap it up.
    Ms. Pustay. Okay. So the answer is yes, we do many things, 
including those workshops.
    Ms. Hill. Thank you.
    Without objection, I would like to enter a statement from 
the Electronic Privacy Information Center.
    Ms. Hill. And I will recognize myself for five minutes.
    Mr. Epp, last year this committee received troubling 
allegations from a whistleblower about EPA's FOIA practices. 
The whistleblower, a former Deputy Chief of Staff, claimed that 
the former Administrator Pruitt intentionally delayed responses 
to new FOIA requests under the pretext of a first-in/first-out 
policy. So my first question is, is the EPA still processing 
requests under a first-in/first-out policy?
    Mr. Epp. Well, the Department of Justice has guidance that 
recommends to agencies that they use a first-in/first-out 
approach. We are using a multi-track approach where we try to 
identify whether the FOIA request is simple or whether there 
are unusual circumstances that make it complex, and then in the 
Office of the Administrator we have also divided up the FOIA 
requests, particularly the backlog, within subject matter areas 
so that they can be more efficiently processed by individuals 
who are familiar with those areas.
    So I would not say that it is accurate that we are using a 
first-in/first-out. In fact, we have within the last months 
issued FOIA responses on many more recent FOIA requests, 
including in the Administrator's Office.
    Ms. Hill. Is there documentation for this process or 
protocol around this new multi-track process?
    Mr. Epp. The multi-track process and unusual circumstances 
or complex is laid out in our regulations.
    Ms. Hill. So in the regulations that are published where?
    Mr. Epp. EPA's regulations that were published in the 
Federal Register.
    Ms. Hill. Okay. So the multi-track process was just simply 
not being followed previously, or it was----
    Mr. Epp. I have been in my position since August of last 
    Ms. Hill. Okay.
    Mr. Epp. But it is my understanding that the multi-track 
process of determining simple and complex has consistently been 
followed by the agency all the time, ever since the regulations 
were adopted.
    Ms. Hill. Okay. I think that that is perhaps not the case. 
But are you saying that the EPA is not prioritizing requests 
for documents of the Obama Administration over the current 
    Mr. Epp. We have tackled backlog in various frames, but 
right now we are primarily working on FOIA requests that have 
come in within this administration.
    Ms. Hill. Okay. And is the EPA prioritizing requests for 
documents of the Pruitt Administration over requests for the 
documents since Administrator Wheeler was named as Acting 
    Mr. Epp. Like I said earlier, within the last months we 
have put out responses on FOIA requests that have come in 
within the last months within the time of the Wheeler.
    I would also like to point out that the data show that more 
than 60 percent, or approximately 60 percent of our FOIA 
requests we respond to within 20 days.
    Ms. Hill. Okay. So if the regulations state that the EPA 
determines that a request will be placed on a slower track for 
review, that the agency must provide the requester with an 
opportunity to simplify that request, is that happening?
    Mr. Epp. We--when--so EPA is a very decentralized FOIA 
processing agency. Each office does the FOIA processing 
themselves, so there may be inconsistencies across the agency, 
but the best practices that we recommend and that my FOIA 
Expert Assistance Team trains on when they go out and do 
training for offices is to do precisely that, to reach out to 
the requesters, to seek opportunities, to offer them 
opportunities to narrow their request, to find out what 
information the requesters are actually looking for in order to 
be able to more efficiently and effectively and quickly provide 
them responses.
    Ms. Hill. Okay. In December, a Federal judge in California 
ruled that EPA could not slow-walk their requests for emails 
and calendars of senior EPA officials. Without objection, I 
would like to submit the decision from the Northern District of 
California to the record.
    Ms. Hill. In her ruling, Magistrate Judge Elizabeth Laporte 
said, and I quote, ``The defendant's limited resources do not 
relieve it of its statutory obligation to promptly provide 
requested documents.'' Administrator Wheeler has pledged to 
improve the timeliness of the EPA's FOIA responses by hiring 
additional staff to respond to pending requests. How many staff 
have been hired in the last four months to deal with this 
    Mr. Epp. So again, EPA is a decentralized processing agency 
for FOIA. I do not have direct supervisory responsibility over 
the Office of the Administrator. Nevertheless, my understanding 
is that the Office of the Administrator has hired five new 
staff for processing FOIA requests. And of course, as I stated 
in my prepared remarks, there was also a Tiger Team of document 
reviewers that was stood up originally in August of last year, 
12 individuals who have been performing on that document review 
team, and they have reviewed nearly 24,000 documents on a 
first-pass review since August through this last week, and an 
additional 16,000 documents on a second-pass review.
    Ms. Hill. I have some concerns that the decentralized 
response is making it so that we cannot get full information. 
So can you get back to us in terms of how we are able to get 
answers on the fact that you are saying this is a decentralized 
way of processing FOIA information?
    Mr. Epp. I would be happy to work with the committee and 
your staff.
    Ms. Hill. Thank you.
    And with that, I would like to recognize Ms. Miller.
    Mrs. Miller. Thank you, Madam Chairwoman and Ranking Member 
Jordan, and thank all of you all for being here today.
    West Virginians sent me to Congress to hold our government 
accountable to the people that it serves. While we work here in 
Congress to make our own institution more transparent, it is 
important that other branches take similar steps to support an 
open government.
    Across administrations, full and speedy FOIA compliance 
should be the goal. As we have seen, our current administration 
has received an increase in FOIA requests. I understand the 
frustration from groups who want access to information quickly, 
but I also realize such requests take time to process and 
    With that in mind, I have questions that I would like each 
one of you to answer.
    How long does it take each of your agencies to review and 
respond to a simple FOIA request?
    Ms. Pustay, do you want to start?
    Ms. Pustay. Between 20 and 30 days for simple track in DOJ.
    Mrs. Miller. Okay. Thank you.
    Ms. Spector. It is my understanding that the Department of 
the Interior, that our policy--based on our policy, we endeavor 
to respond to simple requests within five working days. It is 
also my understanding that we are not always able to meet that 
    Mrs. Miller. Mr. Epp?
    Mr. Epp. The data on that is in our annual report, which is 
posted on our website, and it shows that for simple requests 
that the average number of days that it has taken us to respond 
was 35.
    Mrs. Miller. Thank you. How long does it take for you all 
to review and respond to complex FOIA requests?
    Ms. Pustay. Again, that number I do not have memorized, but 
it is obviously in our annual report as well. But I believe it 
is several hundred days.
    Mrs. Miller. Several hundred.
    Ms. Spector. The same answer for me. I do not have that 
number at my disposal, but we can certainly provide it to you.
    Mr. Epp. And again, it is in our annual report that is 
posted on our website. For complex, the data show that the 
average number of days is 148.
    Mrs. Miller. So it could be anywhere between three and six 
months, basically, would you not say? Okay.
    From Fiscal Year 2016 to Fiscal Year 2017, FOIA requests to 
the Administration increased by a total of nearly 30,000. Since 
2017, have each of your agencies seen a huge increase in FOIA 
requests overall? Can you quantify it?
    Ms. Pustay. Well, again, this is all information that is 
tracked by each agency in their annual FOIA report. You can 
compare from year to year, and then in the summary that my 
office puts together every year we compile the numbers so we 
can show governmentwide the trends. As I mentioned before, 
there has been an increase in incoming requests for the past 
several years. Since 2009, we have had a steady increase in 
incoming requests each and every year. We have also seen 
agencies do their best to reach out and respond to that 
increase by increasing their processing.
    Mrs. Miller. But you have not seen a huge increase since 
    Ms. Pustay. We did see yet again--the trend continued, and 
certainly at DOJ we received over 90,000 requests in Fiscal 
Year 2018, which was a record high for us, and I am expecting 
the same across the government.
    Mrs. Miller. Thank you.
    Ms. Spector?
    Ms. Spector. At Interior, since the close of Fiscal Year 
2016, there has been a 30 percent overall increase, but within 
the Office of the Secretary FOIA Office they have experienced a 
210 percent increase.
    Mrs. Miller. Wow.
    Mr. Epp. So at EPA, for Fiscal Year 2018, there was a 
modest decline as compared to 2017, but approximately 1,000 
more as compared to 2016. Also in 2017, it was approximately 
1,000 more than in 2016.
    Mrs. Miller. Thank you. I think it is important for people 
to hear this.
    Would you all say that most of these requests have been 
simple or complex?
    Ms. Pustay. The trend definitely is that requests are more 
    Mrs. Miller. Okay.
    Ms. Spector. I would concur to the extent that I do not 
have the hard data in front of me.
    Mrs. Miller. Thank you.
    Mr. Epp?
    Mr. Epp. And EPA receives a very wide spectrum of requests 
that come in to EPA. As I mentioned earlier, approximately 60 
percent of our requests we were able to respond to within 20 
days. Those are much simpler requests. But others take us much 
longer. And what I also previously stated is that within the 
Office of the Administrator in particular, we have seen a 
concentration of requests in that office in both 2016 and 2017, 
an increase in that office of 368 percent one year and 415 
percent another year over the level that it was in 2016.
    And we have also observed that the requests in particular 
in that office are more complex in a number of different ways 
in terms of our ability to respond, such as requests that ask 
for all communications from a particular individual, as well as 
requests that are more complex in terms of asking for many 
subparts that require coordination and communication not only 
from within the Office of the Administrator but from within 
other offices of EPA to ensure that they are properly responded 
    Mrs. Miller. Thank you so much.
    Mr. Sarbanes.
    [presiding] The gentlewoman's time has expired.
    Congresswoman Tlaib is recognized for five minutes.
    Ms. Tlaib. Thank you, Mr. Chairman.
    Ms. Spector, during the government shutdown in January, the 
Department of the Interior's FOIA request website sent an 
automatic message to requesters that said, and I quote, ``No 
FOIA request can be accepted or processed at this time.'' The 
Deputy Press Secretary for Interior claimed in a statement that 
this was ``standard protocol for a shutdown.''
    Two questions. Is there a written document that confirms 
this policy is standard protocol?
    A second question. Why was the Interior Department unable 
to accept requests through the FOIA online process?
    Ms. Spector. I am not aware of whether or not there is a 
written document that reflects that protocol, and I am happy to 
take that back to my department and provide a response to you.
    The FOIA online requires staffing, and my understanding of 
the situation is there were no appropriated funds available to 
provide such staffing.
    Ms. Tlaib. Well, during the shutdown in 2018, the Equal 
Employment Opportunity Commission's website stated, ``EEOC will 
accept all FOIA requests during the Federal Government 
shutdown, but EEOC will not be able to process the FOIAs until 
after the Federal Government reopens.''
    Another two questions. What prevents the Interior from 
passively receiving FOIA requests during a shutdown like the 
EEOC did?
    And did the Interior choose to reject requests to avoid 
starting the statutory timeline?
    Ms. Spector. I regret that I do not know the answer to that 
question, but I will endeavor to get back to you with that 
    Ms. Tlaib. I appreciate that.
    Even though the Interior claimed that it could not accept 
FOIA requests during the shutdown, it still managed to issue a 
new proposed rule to change its FOIA regulations, and it did so 
on December 28, six days after the shutdown started. The public 
was given a month to provide public comments, but because of 
the shutdown none of the comments could be reviewed until three 
days before the end of the comment period.
    Another two questions. Was three days enough for the 
Interior to review all the comments on the proposed new rule?
    Why did the Interior rush to announce this new rule during 
the shutdown?
    Ms. Spector. My understanding is that the proposed rule was 
provided to the Federal Register the day of the shutdown.
    And to respond to your second question--actually, could you 
repeat your question?
    Ms. Tlaib. Yes. Why did the Interior rush to announce the 
new rule during the shutdown?
    Ms. Spector. Yes. I believe that it was unclear whether the 
shutdown was going to occur on that Friday, and the rule was 
ready to be sent to the Federal Register.
    Ms. Tlaib. It just looks bad, we cannot accept FOIA 
requests but we are issuing new rules. I find it troubling that 
the Interior was able to push forward new regulations to roll 
back FOIA during the shutdown at the same time it was refusing 
to accept new requests. The Department of the Interior should 
be using its limited resources, Ms. Spector, to advance 
transparency rather than using the shutdown to weaken its FOIA 
program within these new limitations.
    I yield my time, Mr. Chairman.
    Mr. Sarbanes. The Chair yields to Mr. Grothman for five 
    Mr. Grothman. A question for Ms. Pustay. Since the portal 
went live, how many requests have been submitted to the portal, 
do you think?
    Ms. Pustay. Nine thousand.
    Mr. Grothman. Nine thousand. Okay. Do you think it has 
streamlined these requests? We are better off with the portal?
    Ms. Pustay. Yes. We have been very pleased with the 
operation of the portal so far, and obviously we are really 
looking forward to improving the capabilities and the 
capacities of it.
    I think one of the key highlights of the portal, first of 
all, was that it was built in conjunction with user feedback. 
So all through the process of developing the portal, we were 
working not just with agencies but also with requesters to find 
out what is it that is most useful to them in the request-
making process, and I think by factoring that input in, we did 
simplify the process.
    Mr. Grothman. And about how quick is the turnaround, do you 
    Ms. Pustay. The transmission through the portal is 
basically instantaneous.
    Mr. Grothman. Okay, Okay. Do you believe--there have been 
some rumors out there. Do you believe agencies are making an 
effort to make their current system interoperable with the 
    Ms. Pustay. They are now required to. The Justice 
Department and OMB just issued a memo to agencies directing 
them and setting forth a schedule and a process for them to 
develop plans to become interoperable with the National FOIA 
Portal. The default position for any agency that has an 
automated case management system is that they are going to need 
to be interoperable with the portal through an API, an 
application programming interface, which is basically a tool or 
a bridge between two technology systems.
    So the idea there is that the greatest efficiencies are 
achieved by using an API, and the agencies with automated case 
management systems will have requests coming through the portal 
and going directly into their internal case management systems. 
It is a definite improvement in efficiency.
    Mr. Grothman. Okay. So it sounds like you are doing a great 
job on the first iteration. Are you working on a second 
    Ms. Pustay. Yes, we definitely are, and we have a group. We 
have secured funding for improvements to the portal, and we 
have several things that we want to do both to help have a 
guided feature, for example, to help guide requesters to the 
right agency. We want to help improve the reporting 
functionality for agencies. We have been talking a lot today 
about annual FOIA reports and governmentwide numbers. We want 
to do some things with the portal to work on that. We have a 
lot of ideas, and we are looking forward to keeping the 
National FOIA Portal as a vital part of FOIA.
    Mr. Grothman. Super.
    Just a general comment and a followup with Ms. Spector and 
Mr. Epp. How does your agency--or what is your experience with 
the portal? Do you get a lot of requests through there? Do you 
feel it is working well?
    Ms. Spector. I actually do not have numbers on requests 
that we have received through the DOJ portal, but I can provide 
that at a later time.
    Mr. Grothman. Okay.
    Mr. Epp?
    Mr. Epp. I also do not have those numbers. We use FOIA 
Online as our primary method for receiving FOIA requests.
    Mr. Grothman. Okay. Do you feel the portal, though, does it 
interact with the current system?
    Mr. Epp. Currently it does not. We are committed to making 
that interoperable.
    Ms. Spector. I believe at Interior that it does.
    Mr. Grothman. Okay.
    Mr. Epp, how many individuals work on FOIA at the EPA?
    Mr. Epp. So, our annual report shows that there are 
approximately 100 full-time employees, and approximately an 
additional 100 full-time equivalents. So those are people who 
work on FOIA part time and enter their information.
    Mr. Grothman. So it is like 200 people full time are just 
working on FOIA.
    Mr. Epp. Full-time equivalent.
    Mr. Grothman. Okay. Does each office within EPA have their 
own department?
    Mr. Epp. So, as I mentioned earlier, EPA is a highly 
decentralized FOIA processing agency, so each of the major 
divisions have a FOIA officer, a FOIA coordinator who manages 
the assignments of FOIAs.
    Mr. Grothman. Okay. And then maybe I missed this. How many 
FOIA requests do you get, FOIA requests did you get in 2017 
total for EPA?
    Mr. Epp. It was approximately 11,000.
    Mr. Grothman. Eleven thousand. And did that go up or down 
last year?
    Mr. Epp. Last year it was slightly lower than it was the 
year before.
    Mr. Grothman. Is there any big change since the Obama 
Administration? What were you getting in 2015, 2016?
    Mr. Epp. One of the things that I have testified to is 
that, as compared to 2016, both 2017 and 2018 were 
approximately 1,000 higher than they were in 2016.
    Mr. Grothman. Okay, so up, but not wildly up, right?
    Mr. Epp. What we have observed in both 2017 and 2018 is 
significant increase in FOIA requests to the Office of the 
Administrator. So that particular component of the agency 
received approximately 368 percent more than 2016, and 
approximately 415 percent more in----
    Mr. Grothman. Okay. I think I am about ready to get the 
hook, so we will let you be.
    Mr. Sarbanes. The gentleman's time has expired.
    I yield myself five minutes for questions.
    Ms. Spector, the Department of the Interior proposed a rule 
in December, I believe, that would restrict public access to 
its records. Under the rule, Interior could ``impose a monthly 
limit for processing records'' for an individual requester.
    I am curious; what is the monthly limit that Interior is 
    Ms. Spector. Congressman, this is a work in progress, and I 
would like to explain that. During the past two years the 
Department has seen a significant increase in complex requests 
that are seeking any and all records that result in the 
collection of a large volume of material, and this creates--the 
monthly processing limit proposal is an effort to equalize the 
provision of records to all FOIA requesters. So if you have a 
small group of requesters whose requests consist of hundreds of 
thousands of pages of documents, that if we produce only a 
portion to them in a monthly period, that we can then provide 
more responses to more requesters.
    Mr. Sarbanes. I get that. I understand that. What is the 
    Ms. Spector. There actually is not a set number. As I was 
describing a little bit earlier, in the context of FOIA non-
response litigation, we have a separate track of processors who 
work only on those matters, and we calculate a monthly 
processing capability based on the number of litigated matters, 
the number of processors, and the estimated page number that 
each processor can complete in a month.
    Mr. Sarbanes. I guess the reason that concerns me is--first 
of all, I am not sure a monthly limit really comports with the 
spirit of FOIA. I mean, the agencies to which these inquiries 
are directed are under an obligation to respond, and a monthly 
limit would appear to cut against that obligation. But also I 
am particularly troubled at this notion that the monthly limit 
could just change based on the--I mean, I understand from your 
point of view maybe why that could make some sense, but the 
potential to, in a sense, manipulate the monthly limit from 
month to month, either based on the kinds of requests that have 
come in previously or in anticipation of requests that may be 
coming, could allow for a lot of mischief. Do you understand 
what I am saying?
    You could anticipate, oh, this group is going to be making 
this number of requests, so let's set the monthly limit here 
for the next month, and that will knock them down. And then 
another month comes along and you change it again to 
potentially respond to another group. The reason that concerns 
me is there is potential for politics to get in the mix.
    I understand that the Western Values Project, which is a 
non-profit based in Montana, was one of the organizations that 
has frequently requested records from the Interior over the 
past two years, and the former Secretary of the Interior, Ryan 
Zinke, went on television and was disparaging the group: they 
are operatives of the Democratic Party, they are hacks, they 
have always been, they need to be investigated, et cetera.
    I am concerned that these monthly limits maybe are being 
instituted potentially as a way of limiting the inquiries 
coming from certain groups based on their politics.
    Was this rule drafted in any way in response to that 
particular group, that you are aware of?
    Ms. Spector. Absolutely not.
    Mr. Sarbanes. Do you understand my concern about how 
monthly limits could be manipulated based on experience or 
anticipation of what will be coming in? Do you see that as an 
    Ms. Spector. I would agree that a monthly limit scenario 
that was applied arbitrarily and capriciously could result in 
that outcome, but I would also say that the process that we 
anticipate is a process by which we assess our capacity and 
provide the greatest number of FOIA responses to the greatest 
number of requesters each month. At the end of the day, that 
promotes the spirit of the FOIA to a greater extent than 
focusing on a small subset of requesters who eat up all the 
time of the FOIA processors with these large requests that 
involve thousands of pages of documents.
    Mr. Sarbanes. Well, you have not completely assuaged my 
anxiety on this point, so I would ask the Department to go back 
and take a closer look at this rule, because I think there is 
the potential for it to be used in a way that cuts against the 
obligations under FOIA.
    With that, I will yield back my time to myself and 
recognize Congresswoman Speier for five minutes.
    Ms. Speier. Thank you, Mr. Chairman.
    Ms. Spector, are you a political appointee?
    Ms. Spector. No.
    Ms. Speier. So you work for the American people; correct?
    Ms. Spector. Yes, ma'am.
    Ms. Speier. Now, you indicated that the percentage increase 
in the last year or two was up 30 percent for----
    Ms. Spector. The Department overall.
    Ms. Speier. And 200 percent for----
    Ms. Spector. Two-hundred and 10 percent for the Office of 
the Secretary.
    Ms. Speier. Now, having said that, in 2016 the Department 
of the Interior released 53,000 records proactively, and in 
2018 the Department released just 22,000 records. That is a 58 
percent reduction in the number of documents that were 
released. So to make the claim that the production of document 
requests has increased, the actual number of pages or requests 
that have been filled has been reduced by 58 percent. So how do 
you account for that?
    Ms. Spector. Well, I think the number that you are 
referring to is our proactive disclosures. Under the FOIA we 
are required, when three or more requesters seek certain 
documents, that we make them proactively available to the 
public. Although I am not specifically familiar with the data 
that you provided about that decline, I think I can speculate 
with some assurance that given the increased volume of our FOIA 
requests overall, and specifically with the Office of the 
Secretary, that has hampered our effort to make proactive 
disclosures that are not in response to a specific FOIA 
    Ms. Speier. All right. Last month the Ninth Circuit Court 
of Appeals rejected efforts by the U.S. Fish and Wildlife 
Service, which falls under your agency, for disclosures to the 
Sierra Club. The document at issue was an analysis provided to 
the EPA by Wildlife Service, as required by law, on the adverse 
effects of a proposed rule that would have endangered turtles 
and sea lions. The Service, which is within your Department, 
wanted to hide the documents through the so-called deliberative 
process exemption in FOIA.
    Why would the Department want to shield its analysis on the 
impact of an EPA regulation from the public?
    Ms. Spector. I am not familiar with that specific case.
    Ms. Speier. All right. If you are not familiar, would you 
become familiar and then report back to the committee on why 
you felt compelled to shield the analysis from the public?
    Ms. Spector. Certainly. Can I say, though, that----
    Ms. Speier. I do not want to waste my time if you cannot 
answer it.
    Ms. Spector. I understand.
    Ms. Speier. How would you explain--the question asked about 
the monthly limit, where did that idea come from?
    Ms. Spector. Interestingly, it is a variation on a protocol 
that we understand the Federal Bureau of Investigation applies 
in managing its FOIA responses.
    Ms. Speier. Did the FBI suggest this to you? How did this 
idea pop into your head?
    Ms. Spector. We learned of it in litigation and reached out 
to the Federal Bureau of Investigation to understand their 
processes, and in light of that are attempting to develop an 
    Ms. Speier. I hope you can appreciate, from some of the 
questions that you have heard today, that that is a really bad 
    I would like to move on to Ms. Pustay. You have indicated 
in a memorandum about what documents should be included in 
administrative records. You specifically said that documents 
reflecting the agency's pre-decisional deliberative process are 
generally not relevant to the APA.
    How can agencies be held accountable under the APA if we 
cannot see how decisions are being made?
    Ms. Pustay. I do not have any idea what document you are 
talking about because I would not have written a document about 
the Administrative Procedures Act.
    Ms. Speier. It was a memo, October 20th, 2017, from DOJ 
about what documents to include in administrative records.
    Ms. Pustay. So it is not a FOIA matter, and I cannot answer 
it. I am sorry.
    Ms. Speier. So in that case, would you look into it for us 
and report back to the committee?
    Ms. Pustay. Sure.
    Ms. Speier. All right.
    And with that, Mr. Chairman, I will yield back.
    Mr. Sarbanes. The gentleman from Vermont, Mr. Welch, is 
recognized for five minutes.
    Mr. Welch. Thank you, Mr. Chairman.
    Ms. Pustay, the FOIA Improvement Act of 2016 requires 
agencies to establish ``procedures for identifying records of 
general interest that are appropriate for public disclosure and 
for posting such records in a publicly accessible electronic 
format,'' as you know. Research, I am told, shows that agencies 
could significantly reduce their FOIA backlogs by taking steps 
to proactively disclose information that is routinely requested 
by the public.
    What procedures have agencies established to comply with 
this section of the law?
    Ms. Pustay. We have long hoped that we would see a decline 
in the incoming FOIA requests as a result of proactive 
disclosures. But as we have been talking about today, the 
number keeps increasing. But we can certainly hope that there 
are individuals who have been finding their records via 
proactive disclosures, and it is definitely a factor in our DOJ 
FOIA guidelines. It is something that we train on regularly. We 
have issued guidance to agencies on making proactive 
disclosures because we really think it is a very beneficial 
part of FOIA administration.
    To your question specifically, we asked all agencies to 
include in their Chief FOIA Officer Report a description of the 
steps they take, the methods they use to identify records for 
proactive disclosure. So we will have that answer for every 
single agency as part of their Chief FOIA Officer Report.
    Mr. Welch. In 2016, Professor Margaret Kwoka conducted 
research on a group of agencies with significant numbers of 
FOIA requests. She found that certain private companies were 
routinely requesting large volumes of records from regulatory 
agencies such as the FDA and FCC, and then selling access to 
the records for a profit. It sounds like a rip-off, actually.
    If there is so much demand for the public records, why 
don't the FDA and the FCC proactively disclose them?
    Ms. Pustay. Right. I am aware of that research, and we 
actually did some followup questions to agencies via the Chief 
FOIA Officer Reports. I think I agree with you. The obvious 
response to that situation is for the agencies themselves to 
proactively make that information available.
    Mr. Welch. One company, I guess Day and Day, incorporated 
notes on its website that it charges $1,800 a year for online 
access to a data base of information on Defense contracts. 
Another company, BioScience Advisors, lists a price of $9,500 
for an annual subscription to a data base of FCC contracts.
    Mr. Chairman, that sounds like an outrageous business but 
one we allow.
    How does it serve the public for the government agencies to 
subsidize these data bases?
    Ms. Pustay. Right. Of course, the public is best served by 
the agencies directly making the material available for free to 
everyone on their own website.
    Mr. Welch. So the government could create their own data 
    Ms. Pustay. I certainly agree with you that the way to 
address this is for posting to be done by the government.
    Mr. Welch. Yes. And according to the Professor's research, 
government agencies are only recouping between 1 and 5 percent 
of the cost of processing. In 2015 she pointed out--this is 
great research--the FDA spent $33 million on processing costs 
but received $327,000 in fees from requesters.
    Why are we allowing companies to make huge profits 
compiling information that should simply be proactively 
    Ms. Pustay. Well, your question has a couple of elements to 
it. The recouping of fees we report for every single agency. It 
is a requirement of their FOIA report, and it is a very 
incredibly small number, but that is because of the structure 
of the FOIA. It really limits the situations where agencies can 
charge fees. So as a practical matter, they are really almost a 
non-issue, a non-relevant part of FOIA, although I think it is 
an important thing to be looked at going forward.
    Mr. Welch. Okay. Thank you very much.
    I yield back.
    Mr. Sarbanes. Would you yield the balance of your time to 
    I had a question for all of you, which is that as you have 
been testifying, I am getting a sense of the potential for 
there to be different standards on how you respond to these 
FOIA requests depending on the agency. Is there a process where 
you are looking to your left and your right kind of at what 
best practices ought to operate across the entire government in 
terms of responding?
    Each of you can answer that question, if you would like.
    Ms. Pustay. I will start by saying that because of our 
role, our governmentwide guidance role, we, of course, 
established the standards for agencies to apply, and we do that 
through our guidance that is posted on our website, through our 
training to agencies, and through the DOJ FOIA guidelines that 
we have now had for 10 years that give what we call the pillars 
of FOIA administration.
    But then we know on a very practical level that there are 
tips and nuances, procedures that can be employed to manage 
FOIA requests and manage different aspects of FOIA 
administration, and that is where we do things like have best 
practices workshops. There are other ways that within that the 
government agencies interact with one another, including 
through our newly constituted Chief FOIA Officers Council, and 
then agencies informally meet with one another to learn best 
    Mr. Sarbanes. Appreciate that.
    Any other comments?
    Ms. Spector. I would add that in formulating the new 
departmental FOIA office that I am responsible for launching 
and making operational, we work quite closely with the EPA, as 
well as the FBI and other agencies to identify best practices 
    Mr. Epp. We, of course, look to the DOJ guidance for much 
of our processing baseline, and then we compare notes with 
other agencies. My staff have attended DOJ trainings. We 
compare notes with other agencies for those sort of cutting-
edge, innovative ways of doing things. And then we, of course, 
have our own cutting-edge, innovative ways of doing things, and 
I have testified throughout this hearing regarding our FOIA 
Expert Assistance Team, which we think is one of those 
innovative approaches that we have listed in our Chief FOIA 
Officer Report as one of our best practices. And we, of course, 
use FOIA Online as a ``disclosure to one is a disclosure to 
all'' approach to proactive disclosure.
    Mr. Sarbanes. Thank you. One of the reasons I asked that is 
because some of the concerns we have expressed here on how 
things are being done in response to requests, hopefully those 
would fall off of any best practice list and be replaced by 
things that are more responsive to the public.
    With that, I would like to recognize the gentlewoman from 
Florida, Ms. Wasserman Schultz, for five minutes.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    Ms. Spector, in your testimony you challenged claims that 
Interior leaders have politicized the FOIA process. So let me 
be very specific, and I would like yes or no answers to these 
questions, please.
    Are you aware of any attempts to delay or deny a FOIA 
request to hide information about or protect former Secretary 
    Ms. Spector. No, I am not.
    Ms. Wasserman Schultz. Are you aware of any attempts to 
delay or deny a FOIA request to hide information about or 
protect Secretary Bernhardt?
    Ms. Spector. No, I am not.
    Ms. Wasserman Schultz. Are you aware of attempts to delay 
or deny a FOIA request to hide information about or protect 
your boss, Solicitor Giorgianni?
    Ms. Spector. No, and may I extend my answer to say that we 
respond to FOIA requests consistent with the exemptions in the 
FOIA, and to the extent information has been withheld, to my 
knowledge it has always been based on a sound legal framework.
    Ms. Wasserman Schultz. Okay. Well, that leads me to a 
question: Are you aware of any policy changes made to delay or 
deny FOIA requests to protect politically appointed staff?
    Ms. Spector. No, I am not aware of that.
    Ms. Wasserman Schultz. Okay. Well, this memo from February 
28th clearly instructs an additional layer of review for any 
requested documents that mention politically appointed staff. 
How is this not a policy change?
    And I would like to ask unanimous consent, Mr. Chairman, to 
enter this memo into the record.
    Mr. Sarbanes. Without objection.
    Ms. Wasserman Schultz. How is this not a policy change 
designed to delay FOIA requests explicitly to protect your 
    Ms. Spector. I now am actually very familiar with what you 
are referring to. It was a memo that was published on our 
website in February. It was actually an update of an earlier 
iteration of an awareness review policy that was posted on our 
website in May.
    Ms. Wasserman Schultz. Okay. Please get to the answer.
    Ms. Spector. The awareness review is something that the 
agency and I believe other agencies have been doing informally 
for many years, dating back at least to the prior 
    Ms. Wasserman Schultz. Having a layer of review for 
politically appointed staff is something that has routinely 
been done? That is not something that I am remotely familiar 
    Ms. Spector. The primary purpose of this policy--in fact, 
the purpose of this policy is to make senior leadership aware 
of upcoming releases that may receive media attention. It 
    Ms. Wasserman Schultz. Okay. That would also seem to me to 
be an attempt to delay or deny FOIA requests when you add 
another layer of review by politically appointed staff to slow 
down the assurance that FOIA requests are going to be met in a 
timely fashion. You answered no to my questions, and clearly 
this process adds a layer that delays the process and 
potentially risks denial of a legitimate FOIA request.
    Ms. Spector. I disagree on that second point. The policy 
provides for three workdays in which senior officials are made 
aware of releases that are upcoming, but the policy does not 
provide for senior officials preventing the release of the 
    Ms. Wasserman Schultz. Well, the policy even provides a 
layer of review for people who left in the last three months. 
Is there any reason for the inclusion of that three-month 
period other than to protect former Secretary Zinke?
    Ms. Spector. Again, three months is a relatively recent 
period, and----
    Ms. Wasserman Schultz. Incidentally coinciding with 
Secretary Zinke's departure, which was December 15th. Is there 
any reason to include that three-month layer of review for 
people who left in the last three months other than to protect 
Secretary Zinke?
    Ms. Spector. I believe that things that may----
    Ms. Wasserman Schultz. Like what?
    Ms. Spector. I am sorry. What?
    Ms. Wasserman Schultz. Like what? Besides protecting 
Secretary Zinke, what can you think of that would need review 
in the prior three months?
    Ms. Spector. Indeed, there may be policy decisions that 
were made in the previous three months that implicate the 
current leadership in the Department for which they 
legitimately should be aware before the release is made.
    Ms. Wasserman Schultz. Even though that has never been the 
policy before? And incidentally, you implemented a three-month 
review process----
    Ms. Spector. Three day, three workday.
    Ms. Wasserman Schultz.--a process that requires review for 
people who have left in the last three months suddenly. Is that 
pure coincidence that it happens that the previous Secretary 
left on December 15, within that three-month window? Because 
this is not something that was ever needed before. Why is it 
needed now?
    Ms. Spector. I guess I am not understanding your question. 
I am sorry.
    Ms. Wasserman Schultz. Okay. If I can just indulge for a 
moment to clarify, Secretary Zinke left on December 15. That is 
within the last three months. And prior to Secretary Zinke's 
departure, there was not a requirement or a layer of review for 
FOIA requests for people who left in the previous three months. 
Suddenly there is a review that was deemed necessary following 
his departure.
    Is there any reason not to conclude that that three-month 
period was added other than to protect former Secretary Zinke?
    Ms. Spector. Yes. Again, I believe that there may have been 
policy discussions within the previous three months that 
implicate the senior officials that are currently leading the 
Department, and pursuant to our policy they have three working 
days to be aware of the release of that material.
    Ms. Wasserman Schultz. Reclaiming my time, Mr. Chairman. In 
my days as a state legislator, we called Ms. Spector's answer 
not passing the straight-face test.
    Thank you. I yield back.
    Mr. Sarbanes. The gentlewoman's time has expired.
    I want to thank the witnesses because this is a very 
important topic, obviously. The public has a strong appetite. 
It fluctuates over the course of different administrations and 
congresses and so forth in terms of the kinds of information 
that they would like to see. It is a tricky process to 
navigate, I understand. Establishing best practices in the ways 
that you heard from members today is obviously very, very 
    So we are going to continue to take a close look at how the 
agencies respond and meet their obligations under FOIA. This 
was an important opportunity for us to get input and 
perspective from your agencies, and we certainly appreciate 
your testimony.
    Without objection, I would like to place in the record a 
statement from Public Citizen.
    Without objection, so ordered.
    Mr. Sarbanes. I want to thank our witnesses for testifying 
    Without objection, all members will have five legislative 
days within which to submit additional written questions for 
the witnesses to the Chair, which will be forwarded to the 
witnesses for their response. I ask our witnesses to please 
respond as promptly as you are able.
    This hearing is adjourned. Thank you.
    [Whereupon, at 12:33 p.m., the committee was adjourned.]