[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
FOIA: EXAMINING TRANSPARENCY UNDER
THE TRUMP ADMINISTRATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
MARCH 13, 2019
__________
Serial No. 116-09
__________
Printed for the use of the Committee on Oversight and Reform
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Available on: http://www.govinfo.gov
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__________
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COMMITTEE ON OVERSIGHT AND REFORM
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
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Page
Hearing held on March 13, 2019................................... 1
Witnesses
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://
docs.house.gov.
INDEX OF DOCUMENTS
----------
The documents listed below are available at: https://
docs.house.gov.
* 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.
Hill
* U.S. Dept. of the Interior February 28, 2019 Memo Regarding
FOIA; submitted by Ms. Wasserman Schultz
* Public Citizen Statement; submitted by Mr. Sarbanes
FOIA: EXAMINING TRANSPARENCY UNDER THE TRUMP ADMINISTRATION
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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
presiding.
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
statement.
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
quote.
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
government.
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
statute.
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
compliance.
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
law.
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
statement.
With that, I now want to welcome our witnesses for today's
hearing.
Ms. Melanie Pustay?
Ms. Pustay. Pustay.
Chairman Cummings. Say it again.
Ms. Pustay. Pustay.
Chairman Cummings. Okay, I like that.
[Laughter.]
Ms. Pustay. I think I do, too.
[Laughter.]
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
affirmative.
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
up.
STATEMENT OF MELANIE ANN PUSTAY, DIRECTOR, OFFICE OF
INFORMATION POLICY, U.S. DEPARTMENT OF JUSTICE
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
administration.
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
FOIA.
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
improvement.
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?
STATEMENT OF RACHEL SPECTOR, ACTING DEPUTY CHIEF, FREEDOM OF
INFORMATION ACT OFFICER, U.S. DEPARTMENT OF THE INTERIOR
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?
STATEMENT OF TIM EPP, ACTING DIRECTOR, NATIONAL FOIA OFFICE,
U.S. ENVIRONMENTAL PROTECTION AGENCY
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
program.
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
procedures.
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
correct?
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
information.
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
identify----
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
disagree.
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
time.
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
burdensome.
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
discretion?
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
time.
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
requests?
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
backlog?
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
curiosity.
Mr. Epp. We can work with the committee on those sorts of
requests.
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
about?
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
years.
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
help.
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
you.
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
that.
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
productions.''
Is there a special team or any version of it that is still
existing at the EPA that is reviewing these types of FOIA
requests?
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
years?
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
requesters.
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
deadline?
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
decreased?
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
backlogs?
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
executive.
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
correct?
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
correct?
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
advice.
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
so.
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
released.
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
DOJ?
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
be----
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
privilege.
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
2017.
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
that----
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
summary.
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
backlogs.
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
agencies.
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
here?
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
Bernhardt?
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
website.
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
adjustment?
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
guess?
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
that.
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
agencies?
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
year.
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
administration?
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
Administrator?
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
issue?
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
complete.
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
goal.
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
2017?
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
complex.
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
to.
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
information.
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
minutes.
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
think?
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
FOIA?
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
iteration?
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
proposing?
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
number?
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
issue?
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
request.
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
approach----
Ms. Speier. I hope you can appreciate, from some of the
questions that you have heard today, that that is a really bad
idea.
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
bases.
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
released?
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
me?
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
practices.
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
precisely.
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
Zinke?
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
bosses?
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
administration.
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
with.
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
provides----
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
information.
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
critical.
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
today.
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.]
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