[Senate Hearing 118-263]
[From the U.S. Government Publishing Office]
S. Hrg. 118-263
REFORMING FEDERAL RECORDS MANAGEMENT TO
IMPROVE TRANSPARENCY AND ACCOUNTABILITY
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
MARCH 20, 2024
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
55-395 PDF WASHINGTON : 2024
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Lena C. Chang, Director of Governmental Affairs
Emily I. Manna, Professional Staff Member
Dominic S. Thibault, Research Assistant
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Sheila A. Cole, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Ashley A. Gonzalez, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Paul................................................. 2
Senator Johnson.............................................. 9
Senator Hawley............................................... 14
Prepared statements:
Senator Peters............................................... 21
WITNESSES
THURSDAY, MARCH 14, 2024
Anne Weismann, Adjunct Professor, George Washington University
Law School..................................................... 4
Gary Ruskin, Executive Director and Co-Founder, U.S. Right to
Know........................................................... 6
Alphabetical List of Witnesses
Ruskin, Gary:
Testimony.................................................... 6
Prepared statement........................................... 28
Weismann, Anne:
Testimony.................................................... 4
Prepared statement........................................... 22
APPENDIX
Wenstrup Letter to Morens........................................ 61
NARA Letter to NIH............................................... 70
Statements submitted for the Record
Open the Books Statement..................................... 72
Tobias Statement............................................. 75
White Coat Waste Project Statement........................... 76
REFORMING FEDERAL RECORDS
MANAGEMENT TO IMPROVE
TRANSPARENCY AND ACCOUNTABILITY
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WEDNESDAY, MARCH 20, 2024
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. Gary Peters,
Chairman of the Committee, presiding.
Present: Senators Peters [presiding], Hassan, Rosen,
Blumenthal, Ossoff, Paul, Johnson, Scott, and Hawley.
OPENING STATEMENT OF SENATOR PETERS\1\
Chairman Peters. The Committee will come to order. The
Federal Government handles a massive number of records and
documents. These records build an essential account of the work
that the government does for the American people, and they help
our constituents get access to the benefits and the resources
that they need.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 21.
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These records also serve as an aid to congressional
oversight. They help us hold the Executive Branch accountable,
ensure appropriate use of taxpayer dollars, and keep the
Federal Government working well for the American people. That
is why keeping accurate records is absolutely so important and
why it is such a big problem when Federal agencies fail to do
so.
Government officials from administrations of both parties
have mishandled Federal records. In some cases, existing
records retention rules were blatantly disregarded. In other
cases, Federal officials failed to create records of key
meetings, use their personal devices for official business, and
deleted messages that should have been saved.
In the past few years, I have heard troubling reports of
officials destroying documents on purpose. Our systematic
challenges have to do with the increase in electronic records
and the use of new technology. Our procedures need to be
updated to account for social media, videoconferencing tools,
collaborative office systems, messaging apps that automatically
delete content, and other modern tools that our government uses
each and every day.
Today's hearing will help us examine and improve our system
for keeping Federal records. Our witnesses are experts in the
field of records management and government transparency. They
will help us evaluate Federal agencies' compliance with record
keeping laws, as well as the reforms that we need to implement.
Whether it is adapting to new technologies, making it
easier to enforce the guidelines that we have in place, or
committing more resources to records management, we can take
steps to make this process work better. That is why I am
working on legislation that would update the Federal Record Act
(FRA), making our government more transparent, more efficient,
and more accountable.
I would now recognize Ranking Member Paul for sharing his
opening remarks.
OPENING STATEMENT OF SENATOR PAUL
Senator Paul. In the prophetic words of John Adams from
1765, ``Liberty cannot be preserved without a general knowledge
among the people--of the character and conduct of the rulers.''
Fast forward nearly 250 years, and the essence of Adam's
assertion could not be more pertinent. As we convene today, we
are at a crossroads facing a critical question; how do we
navigate the legacy of Adam's vision in our times?
Rather than honoring its duty to operate with transparency
and accountability to the American people, the Federal
bureaucracy has become adept at shielding crucial information
from public scrutiny and congressional oversight, all while
squandering substantial manpower and resources in the process.
In recent years, the Executive's Branch obsession with
secrecy has become even more extreme. Take, for example, the
persistent efforts over the past four years by the Federal
Government to obscure information from the American people
concerning Coronavirus Disease 2019 (COVID-19).
For four long years, dozens of agencies across our
government have systematically obstructed my request for
information. Even requests that have now come jointly with the
Chairman have been obstructed. They have refused to disclose
thousands of relevant records in their possession.
Over eight months ago, Chair Peters and I sent a letter to
the Department of Health and Human Services (HHS) requesting
these two documents. This document, 250 pages, all redacted. It
is not classified. This document, nearly 300 pages, all
redacted. This is what the response of government is to our
request, to reasonable requests. These are non-classified
requests, and the government is obscuring them from us.
Last year, Congress unanimously passed a law requiring the
declassification of records relating to Covid origins and the
Wuhan
Institute of Virology (WIV). In fact, today is the one-year
anniversary of that bill being signed into law by President
Biden.
Did the Biden administration adhere to this statutory
directive? We have gotten virtually nothing. The answer,
regrettably, is a resounding no. Instead, what we received was
a paltry unclassified summary appended by a classified annex.
The order to declassify things was given to us in a classified
document.
This pattern of evasion is not limited to Congress. Our
witness today, Gary Ruskin, of U.S. Right to Know, has filed 97
Freedom of Information Act (FOIA) request and 25 lawsuits in
his effort to obtain information from the Executive Branch. He
is probably been largely more successful than any of us in
getting information from the administration.
U.S. Right to Know is one of the countless organizations
fighting for the disclosure of records related to COVID-19.
Nearly all of the records concerning the origins of Covid have
come from these groups obtaining court orders to force the
Executive Branch to comply. That is disappointing that we have
no voluntary compliance. It only comes from a court order.
This is unacceptable. Every one of the Federal FOIA
officers should be at this witness table today telling us why
they are costing the taxpayer thousands of dollars fighting
records requests in court, spilling black reductions all over
the pages that should be public, and obstructing our
congressional mandate to perform oversight over the Federal
Government. This obstructionism typified by extensive
redactions, bureaucratic red tape, and legal barricades,
undermines the very foundation of our democracy.
The importance of a transparent record system cannot be
overstated. When the government cloaks its actions in secrecy,
it fosters an environment of mistrust. Federal bureaucrats
appear to have no shame in their efforts to evade freedom of
information laws and withhold information from the public.
For example, David Morens, one of Dr. Fauci's top advisors,
is accused of improperly deleting COVID-19 origins material and
using his own personal email to avoid FOIA during the pandemic.
How do we know this? He admitted it in writing. Dr. Morens' own
email showed that he hides his National Institute of Health
(NIH) work from FOIA by using Google mail. In a September,
2021, email, Dr. David Morens wrote, ``As you know, I try to
communicate on Gmail because my NIH government email is FOIAed
constantly. Stuff sent to my Gmail gets to my phone, but not to
my NIH computer.''
He is willfully telling people to break the law to avoid
the Freedom of Information Act. If that was not bad enough, he
even said he would delete anything that he did not want to see
in The New York Times. Also, against the law.
It is imperative that we hold these Federal agencies to a
higher standard. The government has a constitutional duty to
respond to our requests and provide adequate answers and access
to records. Today's hearing will shine a light on the failures
of our current public records and freedom of information laws.
As we spotlight the shortcomings of our present public
records and freedom of information statutes, let it be known
that this is not a matter of partisan divide. It is a matter of
principle, of upholding the constitutional rights of every
American. Mr. Chair, I hope to work together to identify
serious reforms, to bring transparency and accountability back
to government. The American people deserve nothing less.
Mr. Chair, I ask unanimous consent (UC) to enter Dr.
Morens' emails into the record.\1\ I also ask unanimous consent
to enter into the record statements from two transparency
groups and one investigative reporter all working hard to
obtain documents.\2\
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\1\ Dr. Morens emails appears in the Appendix on page 61.
\2\ The statements submitted for the Record appears in the Appendix
on page 70.
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Chairman Peters. Without objection.
I look forward to working with you. I can recall on this
issue, it is critical. It has been a source of frustration for
both of us over the last few months.
It is the practice of the Homeland Security and
Governmental Affairs Committee (HSGAC) to swear in witnesses.
If you would both please stand and raise your right hands. Do
you swear that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Ms. Weismann. I do.
Mr. Ruskin. I do.
Chairman Peters. Thank you. You may be seated.
Our first witness, Anne Weismann, is a public interest
lawyer who has spent her career advocating for transparency and
accountability in government. She served as the Chief Counsel
at Citizens for Responsibility and Ethics in Washington, an
organization dedicated to fighting back against government
misconduct.
Prior to her time in the nonprofit sector, Ms. Weismann
served as Deputy Chief of the Enforcement Bureau for the
Federal Trade Commission (FCC), and as an Assistant Branch
Director at the Department of Justice (DOJ). She received her
Bachelor of Arts (BA) from Brown University and her Juris
Doctor (JD) from George Washington Law School.
Ms. Weismann thank you for being here today, and you are
now recognized for your opening remarks.
TESTIMONY OF ANNE WEISMANN,\1\ ADJUNCT PROFESSOR, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Ms. Weismann. Thank you. Chair Peters, Ranking Member Paul,
and distinguished Members of the Committee. Thank you for the
opportunity to testify once again about needed reforms to the
Federal Records Act.
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\1\ The prepared statement of Ms. Weismann appears in the Appendix
on page 22.
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The FRA is a critical component of government transparency
and accountability, and provides the essential infrastructure
for laws like the Freedom of Information Act. In 1950, Congress
enacted the FRA to create a legal framework for managing
Federal records. The Executive Branch confronting Congress in
1950 recorded its communications and actions almost exclusively
on paper and digital media was still the stuff of dreams.
Today, by contrast, every part of the Federal Government
conducts business through electronic communications that range
from government-issued email accounts, and telephones, to
ephemeral messaging apps. While in 1950, a document's
destruction created a permanent hole in our nation's history,
today, digital documents typically leave a digital footprint
that allows for their recovery.
Unfortunately, our recordkeeping laws have not kept pace,
and just as concerning, the National Archives and Records
Administration (NARA) has demonstrated that it lacks both the
will and it believes the necessary enforcement tools to compel
agency compliance with the law.
On multiple occasions, NARA has refused to act in the face
of an apparent recordkeeping violation despite language in the
statute requiring the archivist to act through the Attorney
General (AG). When the archivist learns that records are either
being unlawfully removed or destroyed, NARA has insisted that
obligation runs only to the unlawful removal of records.
I believe the current language of the FRA imposes a duty on
the archivist to initiate an enforcement action for the
unlawful deletion of records. But to remove any doubt, Congress
should add clarifying language, which the proposed amendment to
Section 3106 would do. Congress should also require that every
Federal employee leaving government service certify their
compliance with the FRA. This, again, is something I know this
Committee is considering.
I would go even further, though, and require that a
designated records officer at each agency certify annually that
agency employees are complying with the statutory requirement
to create and preserve their Federal records. This affords a
level of accountability and transparency that currently is not
in the FRA, and properly places the onus on agencies to monitor
their employees' compliance with record keeping laws.
Congress should also impose an outright ban on the use of
government employees using private devices and ephemeral
messaging apps, unless and until there is a system in place to
automatically back up their content on Federal recordkeeping
systems.
The companies that create ephemeral messaging apps tout
their ability to facilitate completely private discussions with
no record or copy left behind through the automatic deleting
function. Absent reforms like the one this Committee is
considering; we can expect continued and widespread use of
these apps that are actually designed to evade record keeping
requirements.
I also endorse the proposal to incorporate records
management into performance plans. This sends a strong signal
that record keeping matters at all levels of government.
Further, while I agree codifying NARA's Capstone program makes
sense, again, I would go further. Setting a floor to often
result in that floor becoming a ceiling. The goal should be to
preserve the maximum number of electronic messages for as wide
a group as possible.
Finally, as outlined in my written testimony, to complement
and enhance these fixes, Congress should establish an
administrative complaint process reviewable by courts in
certain limited instances. This would remove the onus on NARA
alone to administratively enforce the FRA.
The Federal Records Act rests on the central proposition
that government records, as the records of the people, play an
essential role in creating a stronger democracy. But good
record keeping promotes more than abstract goals. It gives
vitality to laws like the Freedom of Information Act by
ensuring greater public access to agency records. We need more
legislation like that which this Committee is considering to
ensure that the goals of the FRA are met.
I look forward to working with the Committee on these
important issues, and I am happy to answer any questions you
have. Thank you.
Chairman Peters. Our second witness, Gary Ruskin, has spent
nearly 40 years working to increase accountability in our
government. He has led a number of key organizations, including
the Congressional Accountability Project (CAP), Commercial
Alert, and the Center for Corporate Policy.
His writing has been published in a number of academic
journals, as well as The Washington Post, The Los Angeles
Times, and The Nation. He received his BA from Carleton College
and a Master's degree from Harvard's Kennedy School of
Government.
Mr. Ruskin, thank you for being here today, and you may
proceed with your opening remarks.
TESTIMONY OF GARY RUSKIN,\1\ EXECUTIVE DIRECTOR AND CO-FOUNDER,
U.S. RIGHT TO KNOW
Mr. Ruskin. Chair Peters, Ranking Member Paul, and other
Senators, thank you so much for inviting me to testify today
about Federal records laws.
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\1\ The prepared statement of Mr. Ruskin appears in the Appendix on
page 28.
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In my testimony, I want to focus on our four-year
experience of investigating the origins of COVID-19, and what
it says about our Federal records laws, and how they are
failing the public. They badly need strengthening and updating.
Over the last four years, U.S. Right to Know has carried
out an investigation into high-risk virological research in the
origins of COVID-19. As a part of this investigation, we have
filed more than 150 public records requests, including 97
Freedom of Information Act requests.
To me, our investigation's a test case of citizens access
to government records. If we can not successfully use our
nation's public records laws to investigate something as
important as the cause of death for nearly 1.2 million
Americans, then why bother keeping records at all?
During our investigation, we have seen that some Federal
agencies, especially the National Institute of Health and the
Department of Health and Human Services, have showed a pattern
of obstruction and stonewalling. This serves the public poorly,
especially on a matter that touches so many Americans so
deeply.
Let me review some key evidence we have of Federal agencies
obstructing our Federal records laws. In the course of our
investigation of the origins of COVID-19, we have had to file
25 FOIA lawsuits covering 38 separate FOIA requests. We have
had to litigate FOIA requests of 14 Federal agencies and
subagencies, including NIH, Departments of Defense (DOD),
Education (ED), Energy (DOE), Health and Human Services, State
(DOS), Federal Bureau of Investigation (FBI), U.S. Agency for
International Development (USAID), and others.
Why did we litigate so many times? Why did we have to?
Because these agencies did not comply with the deadlines and
the public records laws, or were obstructing those laws. For
this to happen so many times is a sign that our records
processes are failing the public. As Senator Paul was saying,
at NIH there's evidence that staff intentionally obstructed
public records.
Dr. David Morens was a senior aid to Dr. Anthony Fauci, the
former director of the National Institute for Allergy and
Infectious Disease (NIAID). In a September, 2021 email, Dr.
Morens wrote, ``As you know, I try always to communicate on my
Gmail because my NIH email is FOIAed constantly. Stuff sent to
my Gmail gets to my phone, but not to my NIH computer. Do not
worry, just send to any of my addresses, and I will delete
anything I do not want to see in The New York Times.'' This
sort of purposeful obstruction of Federal records laws as an
attack on the public's right to know what the government is
doing with our tax dollars.
There's also evidence that NIH and HHS established special
review processes that have served to delay Federal records
related to COVID-19 and its origins. For example, HHS has
stated that it created four additional layers of legal review
for FOIA requests concerning the pandemic. NIH Director Francis
Collins, personally reviewed NIH FOIA productions prior to
release. According to Jason Foster of Newsweek, aside from
being a deeply questionable use of the NIH Director's time, his
review of these records was also a conflict of interest because
many of them concern his own conduct.
Some agency's delays have been in producing Federal records
have been extensive and hard to justify. For example, on
November 8, 2021, we filed FOIA litigation against NIH for nine
separate FOIA requests related to COVID-19 origins and
virological research, including communications between the NIH,
and EcoHealth Alliance, and the Wuhan Institute of Virology.
NIH failed to produce a single record for more than 16 months
after we initiated litigation.
In another example, exactly a year ago today, as you
mentioned Senator Hawley's COVID-19 Origin Act was signed into
law. The law requires the Office of the Director of National
Intelligence (ODNI) to declassify information about potential
links between the Wuhan Institute of Virology and the origins
of COVID-19. We filed a FOIA request for those declassified
documents seven months ago and today, ODNI still has not
produced any new records, not previously reduced to the public.
There are a couple of solutions that I would like to talk
about briefly. The most important is to limit the use of the
nine FOIA exemptions to when they are clearly in the public
interest. That would be a tremendous reform to bring openness
in government. Thank you so much.
Chairman Peters. Thank you.
Ms. Weismann, in your testimony, you highlighted several
important challenges to managing Federal records. Please tell
the Committee just why it is so important to preserve these
records appropriately. Perhaps you go a little bit more in
depth from your opening comments. More importantly, how does
this benefit the American public? Why is this so essential?
Ms. Weismann. These records are critical part of our
history, of our story, and they explain what the government has
done and why it's done what it has done. Access to these
records is absolutely critical for bodies like this Committee,
and other Committees in Congress, and the public, to hold our
government actors accountable. Without records, that is simply
not possible.
They are also critical, as I have mentioned, for
transparency laws like the Freedom of Information Act, which
has as its backbone, if you will, records. Records are the
currency of democracy. They are the way we hold government
actors accountable, and we have seen too many examples, whether
it is at NIH, whether it is at the Department of Homeland
Security (DHS), whether it is the U.S. Secret Service (USSS),
we have seen too many examples where Federal employees are
either willfully, or unwittingly avoiding, or contravening
their recordkeeping responsibilities. As a result, the
historical record of what they are doing and why they are doing
it is incomplete.
Chairman Peters. In your opinion, Ms. Weisman, is the
Federal Records Act lacking, and specifically, as you know, we
are drafting strengthening oversight of Federal Records Act. We
have worked with you and, and have gotten your thoughts, but
how do you think this bill, if passed, will address that
problem, and why is it important for us to do that?
Ms. Weismann. I think this bill has some really critical
features that will address the problem. No. 1, as I understand
it, it would require all departing employees to certify their
compliance with the Federal Records Act. We have seen examples,
I think, in the last administration to very high-ranking acting
level officials. It was discovered after they left, that
critical emails from a critical period had been deleted. If
they had been required to certify upon leaving government that
they had complied with their recordkeeping responsibilities,
that might not have happened, or there would have been some
ability to hold them accountable for what they did.
I think another provision that this Committee is
considering is to codify the Capstone requirement. That is a
program that NARA created that would require the email messages
of a top level of agency officials at every agency to be
preserved. I think there has probably been inconsistent
compliance with the Capstone requirement. I think this
Congress, this Committee, has the right idea to codify that
requirement and extend it to all messages, including electronic
messages.
A huge problem has been the use by employees of either
personal email accounts, personal phones, or ephemeral
messaging apps, and these allow them to evade compliance with
the Federal Records Act. This Committee, I understand, is
considering a provision that would ban that use unless they
were backed up into a Federal record keeping system. I think a
big part of the problem, and I say this with a great deal of
regret, is that the National Archives and Records
Administration has simply not been willing or able to bring
agencies into compliance with the law.
I mentioned that they have a sort of tortured construction
of the statutory provision that imposes on them a requirement
to refer matters to the Department of Justice, and they are not
well equipped. They do not have the investigative resources,
for example, that the Department of Justice has, which is
precisely why we think it is so critical that the obligation to
make that referral be made clear. Again, my understanding is
that the language that this Committee is considering would do
just that.
I think these are some of the provisions that would go a
long way toward bringing a level of accountability that just
isn't in the statute today.
Chairman Peters. You mentioned in your testimony back in
2022, it was revealed that the Secret Service, along with the
Department of Homeland Security, and the Department of Defense,
had deleted text messages and other electronic records from
their phones. With the reforms that you have just discussed and
others in the bill, specifically, would that prevent something
like this from happening again in the future?
Ms. Weismann. I believe it would. As I mentioned, those
people, the departing employees, would have had to certify if
the provisions of this bill were enacted. They would have had
to certify that they complied with the law. I think, in the
face of that certification, I like to think that government
actors by and large will do the right thing.
If Capstone were in place, it should have captured their
emails as well. That would have been another backup that,
again, would have ensured that their emails were preserved. I
think for the Secret Service employees under the provisions of
the bill, this Committee is considering, they would not have
been able to use their phones, for example, or ephemeral
messaging apps unless the agency had a system in place that
automatically backed them up.
I do think that the provisions that this Committee is
considering could have made a real difference in very concrete
ways.
Chairman Peters. All right, and thank you. Ranking Member
Paul, you are recognized for your questions.
Senator Paul. I think I will defer my questions and let
Senator Johnson go ahead.
Chairman Peters. Very good. Senator Johnson.
OPENING STATEMENT OF SENATOR JOHNSON
Senator Johnson. Thank you, Mr. Chair. You asked, why is
the Federal Records Act not being followed? I think it is
pretty simple. Administrations can ignore it with impunity. Why
is that? Because Congress has allowed its oversight role to
completely atrophy. This Committee has allowed its oversight
and investigatory capability to atrophy. That's the problem.
You can pass more laws, but until Congress steps up the plate
and we accept our responsibility for doing this.
I will use an example. In June 2021, because of a FOIA
request, even though I am sure other Committees of Congress had
been asking for these records, Anthony Fauci or HHS finally
released Anthony Fauci's emails. About 4,000 pages. Within a
week, Senator Paul, I think, joined me and three other Members
of this Committee and requested those documents unredacted.
Again, FOIA is subject to redactions. What? There's seven
different exemptions or nine, whatever. By the way, you never
know whether those redactions are legitimate. We find
repeatedly that they are illegitimate. They are not justified
redactions, right? So going through the accommodation process,
we got all 4,000 redacted. Again, Congress is not subject to
those redactions.
Through an accommodation process, we asked, OK, we want to
focus on these 400 pages. We want to see them unredacted, or we
want to get them. They did not give them to us. We could go
down to a reading room, not make copies, but take notes. We
were able to review 350 of the 400 pages, unredacted, that took
a couple months.
Now, since June 2021, there are 50 pages of the Fauci
emails. By the way, one of the exemptions that is used
frequently here is interagency, even though these emails are
outside the agency. Again, completely fraudulent exemptions are
being claimed, but I have asked the Chair to subpoena these
records. I have asked the Chair of the Permanent Subcommittee
on Investigation (PSI) to assist me. To use his influence with
this administration to get Secretary Becerra to give us these
records.
We had Secretary Becerra before the Senate Finance
Committee a year ago. I did the same thing. I showed him these
last 50 pages. By the way, the law that governs when five
Members of this Committee asked for something, it is like a
subpoena. The agency shall turn the information over to us. He
has not. I asked him last week, why haven't you turned these
over? They haven't even produced a privilege log telling us why
to justify these actions.
Again, the problem here is we are not insisting that the
administration honor our constitutional responsibility and
authority to conduct oversight and obtain these records on
behalf of the American public. That's the problem.
Senator Paul, I appreciate, and Mr. Ruskin, I appreciate
you talking about the Dr. Morens' email. We did not, by the
way, get that email unredacted from NIH. That came through our
investigation in the minority here. Senator Paul and I joined
in this request--I am not going to tell you from who because we
want an active investigation, and you start disclosing that you
start ruining your investigation--but we obtained that email in
a document dump of 175,000 pages.
Now, my staff was able to pull that email out of that
haystack. Of course, we have written to Secretary Becerra;
explain this, give us more documents. We have, of course,
gotten no response from Secretary Becerra. We have gotten no
help from the majority of this Committee in uncovering this.
Again, we can be talking about more laws, but part of the
problem, I used to Chair this Committee. When I took over the
Chair, the Permanent Subcommittee on Investigations, the
majority got $1,000,000 budget. When Senator Peters took over
the Committee, his budget was increased 15 percent, and he cut
the budget of the Permanent Subcommittee on Investigation by
about 26 percent. It has not been restored. We are still down
about 16 percent of what it was.
Now, we got how many million people in the Federal
Government? Millions, right? Do you know many staff members the
premier investigatory body of the U.S. Senate has? We have
five. Again, you ask? Why is the Federal Records Act not
followed? Because Congress is not interested in doing
investigations or oversight, certainly not the Senate. If it
were, we would have a dramatically increased budget for the
Permanent Subcommittee on Investigations.
We would have the majority, in what I would consider
completely non-partisan investigation, trying to figure out
where did this pandemic start? We'd be working on this in a
bipartisan fashion. We would've already subpoenaed years ago
all of the Fauci emails, rather than remain silent and not
allow or not have the majority join the minority in trying to
get this information. So, again, from my standpoint, I think
this is pretty clear.
Mr. Ruskin, I do have a question for you. I want you to
speak to the difference between FOIA and redactions versus
congressional oversight, which really the only legitimate
purpose for withholding things would be executive privilege,
which is quite limited, right? Executive privilege only applies
to communications with the President, not inter-agency stuff. I
mean, agency heads talking to each other, that's not executive
privilege. It has to involve the President. Is that correct,
Mr. Ruskin?
Mr. Ruskin. Yes. I think that is a correct description
Senator Johnson. Do you agree with my basic assessment here
that the reason the administrations are getting away with this
is they just learned over the decades as Congress has allowed
its oversight ability to completely atrophy, that there's no
penalty? There's none.
Mr. Ruskin. Yes. I totally agree with your basic assessment
that, in general, over the last, say, 55 years or so,
Congress's oversight of the Federal Government has declined,
and that is really tragic. In addition, the citizens' ability
to do oversight of the Federal Government through the FOIA has
been dramatically circumscribed just after the FOIA came into
being, and that has continued on and continued to get worse. It
is two problems together. As well, we have a dramatic lack of
investigative reporters.
Senator Johnson. Mr. Chair, if you are serious about this,
subpoena these last 50 pages. Get on the phone with Secretary
Becerra today and go, ``Why don't we have these last 50 pages,
unredacted?'' My guess is the reason we don't is, as
incriminating as the redacted emails were, there is some
probably pretty juicy stuff under all those redactions.
Again, join us. You will subpoena. You use the power of
this Committee, use our constitutional authority, demand that
the administration turn over these records. Thank you.
Chairman Peters. Ranking Member Paul, you are recognized
for your questions.
Senator Paul. On the heels of that, Senator Johnson, I can
not answer to the subpoena part, and that is a decision the
Committee would have to make. But I can say that Chair Peters
and I have been on the phone with Becerra. We did request
these, and he did chime in forcefully on it. It is
disappointing. They still have not. Not only the documents you
are looking for, or what we are looking for. We passed a law
unanimously to declassify all these things.
I tell people, because they do not quite get it. The
declassified thing did not work because it is already all not
classified what they are resisting, I am all for it, and I
think Senator Hawley did a great job with the bill and I
support the bill to declassify it. Most of what we are looking
for is not classified, and yet they still resisted. The two
documents I have that are 250 pages are not classified. What we
have is just complete resistance and obstruction.
But I do agree with your point that if we do reform the
Freedom of Information, people do not want to have punishment.
But if there's no punishment, they won't work. There has to be
a punishment. Like, Dr. Morens, I am still not sure if he's
punished. Mr. Ruskin, do you know if David Morens has been
fired or suspended?
Mr. Ruskin. I do not know, but to my knowledge, no.
Senator Paul. We now know that he is evading the law by
using his own Gmail and saying I deleted anything that is also
against the law. He would be punished, and publicly punished,
to send a message throughout government.
Ms. Weismann, do you know anything about David Morens or if
he's been fired?
Ms. Weismann. I do not.
Senator Paul. Yes. This is the problem we have, and if we
want to make it better, there is going to have to be something
in the bill. If we put forward a bill, if we put forward more
legislation, there has to be some penalties involved. I think
without that, we are not going to get anywhere. I think one
thing we could do, maybe together, would be to see if the Chair
would make inquiries as to whether was Dr. Morens fired? Was he
punished? Has he been suspended?
I think I have seen somewhere in the press that maybe he
has been suspended, but it is all sort of kept quiet. Because
he can get away with this, and then the NIH still gets away
with this, I think they think they are, they are Teflon. They
think they are completely immune.
It is disappointing because Senator Peters has signed now
several letters, and one of them is probably six months old. We
are not asking for the secrets to the Manhattan Project. We are
not asking for the atomic weaponry secrets. We are asking for
NIH deliberations over what is dangerous, what is not dangerous
research, and they basically have told Senator Peters and
myself, go fly a kite.
I do not think this should be partisan. Somehow the whole
thing got wrapped up and became partisan. If you wanted to look
for these records, you had to be part of this vast right-wing
conspiracy. I wanted to mention that U.S. Right to Know, I
think it has done a great job on it, but I do not think you are
part of the vast right wing conspiracy.
I understand you worked for Ralph Nader for over a decade.
I would just like you to clarify for the record, you are not
part of the vast right-wing conspiracy, are you?
Mr. Ruskin. No, I am not.
Senator Paul. I consider this to be people from all walks
of life, right, left, and others. But up here, it became
partisan somehow. Somehow, if we are looking into this, it was
a Republican thing, and it does not need to be.
Like on records requests, if our roles were reversed, I've
told Senator Peters, I cannot think of a record request I will
not sign, but we still are having trouble getting these
records, and we have to somehow more forcefully look for this.
The main reason I want to is not even just the culpability
who was involved. I want to make sure this does not happen
again. You know, that we do not have another virus leak that
kills even more people. The people who look at this say this is
not even the first time. There was a virus that leaked back in
the 1970s. It caused a pandemic, it just was not as deadly. Not
as many people died, but most people believe that it came from
a lab because it had the exact same Deoxyribonucleic acid (DNA)
as a virus from 1954, and it came out. That does not happen
because viruses evolve over time.
With regard to the law on this Mr. Ruskin, does the law
currently say what happens to a person who blatantly flaunts
the law?
Mr. Ruskin. There is a criminal provision right now,
Section 2071, if I remember correctly, that does prohibit the
destruction of records. But it is kind of an old statute and it
is not modern. It is not very clearly applying to these
situations of ephemeral messaging apps or Gmail accounts.
Senator Paul. Right, but even using Gmail is technically
against the law----
Mr. Ruskin. Yes.
Senator Paul [continuing]. Or it is against a rule?
Mr. Ruskin. Yes, correct.
Senator Paul. Ms. Weismann, are you aware of people being
punished for using their personal email? Is it against the law?
Is it a rule? Is it a recommendation?
Ms. Weismann. I am not aware. I would argue that it does in
fact violate the Federal Records Act because the Act requires
the preservation of records, and to the extent text messages,
whether email, et cetera, to the extent they qualify as
records, they need to be preserved. But the problem, as I have
mentioned in my written testimony, is that there are not
sufficient enforcement mechanisms in the Federal Records Act
itself.
Senator Paul. Basically, in the Federal Records Act, it may
well say that it is illegal, but does not say what you do if
someone breaks the law.
Ms. Weismann. Correct. Again, there are provisions that
place the onus on the archivist to make a referral to the
Attorney General. Of course, the Attorney General has a full
panoply of mechanisms to enforce the law, but that enforcement
authority is very rarely exercised. We are in a situation where
I think agencies, and agency officials, and agency employees
can basically flout the record keeping laws with impunity.
Senator Paul. Disappointing. That is all I have. I will
reserve my time.
Chairman Peters. Before going to Senator Hawley, so the
Attorney General does have the ability to enforce, but it is
simply not being used.
Ms. Weismann. Yes.
Chairman Peters. Any suggestions of what we need to do?
Ms. Weismann. Again, I support what this Committee is
proposing, which is to clarify the language of the statute, and
I think it is Section 3106, that the archivist not only has the
ability, but the responsibility to make a referral to the
Attorney General when it comes to the archivist's attention,
that records are either being removed or destroyed. We need to
see NARA more robustly endorse that role.
Once a referral is made, the Department of Justice does
have the ability better than NARA to conduct an investigation.
There are criminal penalties, there are other things that NARA
can do--I mean the Attorney General, there's replevin. There
are available enforcement tools, but they rest with the
Attorney General.
We have to have a better mechanism to require NARA to bring
attention to these problems, because if NARA does not make a
referral, how is the Attorney General supposed to know about a
record keeping violation?
Chairman Peters. Thank you. Senator Hawley, you recognize
for your questions?
OPENING STATEMENT OF SENATOR HAWLEY
Senator Hawley. Thank you very much, Mr. Chair. Thanks for
holding this hearing. Thanks to the witnesses for being here.
I want to start with the Covid Origins Act, which Senator
Paul mentioned a second ago, in which I think is such a great
case study in the failure of the Federal Government, the
Executive Branch, to even comply with the law. I mean, forget
being unresponsive to FOIA requests, although we will get to
that in just a second, but just to comply with the law.
Mr. Ruskin, you highlighted in your written testimony that
it was one year ago today, I think the President signed into
law the Covid Origins Act, which is Senator Paul pointed out,
we passed unanimously here in the Senate. It passed in the
House pretty close to unanimously. It passed on suspension.
That was a year ago. By the way, you can read the law. It is
very short. I wrote it. It is not an optional command. It is
mandatory. It is, as lawyers say, precatory. It is they shall
declassify any and all information relating to potential links
between the Wuhan Institute of Virology and the origin of
Covid.
Finally, late on June 23rd, they blew through the statutory
deadline, that the statute sets a deadline, as you remember,
Mr. Ruskin. There's a deadline in the statute. The
administration blew right through that deadline, and then late,
in violation of the statutory deadline, they do not produce any
and all information related to potential links. They give us a
five-page summary of information, which is in total violation
of the statute, and then a cover page, that is important, and
then an appendix, which sheds no light on anything for a grand
total, I think of 10 pages.
It is a joke. It is a total joke. I immediately wrote to
ODNI, Director of National Intelligence, and said, you are a
violation of the statute. Do you want to try again and actually
comply, or maybe you would like to come testify to this
Committee? I do not think that was a year ago. I sent that on
June 27th of last year. I just checked again this morning. I do
not think I've ever gotten a response to that letter.
It is basically the FU from ODNI. They do not care. They
violated the statute openly. They do not even respond. They did
not even bother to respond to the letters. They do not care.
Now, you, Mr. Ruskin, I think, have filed a FOIA request for
this same information. Is that right?
Mr. Ruskin. Yes. We filed the FOIA request, and we filed
FOIA litigation for it seven months ago, and all we have gotten
is the unclassified report.
Senator Hawley. Yes. You filed a FOIA request, and so far,
you have gotten zilch. Is that correct?
Mr. Ruskin. Yes, with the litigation.
Senator Hawley. Then you went to court because they were
not complying with the FOIA request, and that was in August, I
think, is when you went to court. Is that right? August of last
year?
Mr. Ruskin. I think so. It was seven months ago.
Senator Hawley. Yes. August 10th, I think, of last year.
Thus far, ODNI, or any other, for that matter, arm of the
Federal Government, they have not engaged, they have not
complied. They have given you nothing other than their original
report, which is flagrantly in violation of the law. Have I got
that right?
Mr. Ruskin. You got that right.
Senator Hawley. I cannot emphasize how absurd this is, and
what a mockery this makes of Federal law, what a mockery it
makes of oversight. Frankly, what disrespected is for the
American people. The reason that the President signed this into
law, I am sure he did not want to, but the reason he did, and
well, the reason it passed so overwhelmingly in both Houses is
the American people want to know what their government knows
about the origins of Covid, and they have a right to know.
As Senator Paul pointed out, much of this is declassified
anyway, and yet they still will not make it available for
public review. Despite the law, despite Congress, both Houses
of Congress and the President signing a law, they still will
not comply.
Let me ask you this, in terms of next steps, what would you
recommend, Mr. Ruskin? What do you think this Congress can do,
this Committee of Congress can do to compel agencies to comply
with Federal law? Do you have any suggestions?
Mr. Ruskin. I think oversight hearings like this are
crucial, and you have to do a lot more of them, and just fight
for the ability on behalf of the American people to make sure
that we all can read the documents that our Federal Government
produces.
Senator Hawley. Do you think there ought to be penalties
for Federal agencies that fail to produce records that are
required by statute?
Mr. Ruskin. I definitely think there ought to be, and I
also think there could be some extra funding for agencies that
do a good job at it.
Senator Hawley. Do you have any other suggestions for
improving the system to get agencies to produce records? I have
been rebuffed multiple times. You have been rebuffed multiple
times, Senator Paul's--everybody sitting in this Committee has
been stonewalled by, if not this administration, other
administrations. Do you have any other suggestions for steps
that we can take, penalties, anything else?
Mr. Ruskin. It is not a specific suggestion, but this is a
coequal branch of government, and it is important for our
Members of Congress to act like that.
Senator Hawley. Yes. That is good advice, and we do need to
start acting like it. I thank you, Mr. Ruskin, for what you do.
I thank you for the litigation you carry out on behalf of the
public. The public's right to know, in this case, just to
comply with Federal law. I mean, here, the law actually
requires the disclosure, and we are getting absolutely nothing.
Mr. Chairman, I thank you for holding this hearing. I would
just humbly submit that I think maybe it's time to call the
Director of National Intelligence, and any others, and have an
oversight hearing about their total failure to comply with a
law that we passed unanimously out of the Senate, and that the
House passed overwhelmingly, and the President signed into law,
and they have made zero effort to comply with it in any
meaningful way.
Thanks to the witnesses. Thank you, Mr. Chair.
Chairman Peters. Thank you, Senator Hawley. Senator
Johnson. I know you had a comment.
Senator Johnson. Yes. A real quick point. I understand the
talk about classified versus unclassified for public
disclosure, but again, I want to point out we have security
clearances. It does not apply to us, so that is not an excuse
for the administration not to turn classified material over to
us.
We can read in a sensative compartment information facility
(SCIF), and then again, if we do not agree with the
classification, we can work with the administration to try and
get things declassified, but it is not an excuse for the
administration to withhold documents from Congress who has the
constitutional authority.
Why is it the administration gets to keep all the secrets?
They cannot keep all the secrets. They should not be allowed.
Again, it is not about classification. That is in terms of
public disclosure. When it comes to congressional oversight, it
should have no bearing whatsoever, except for a very limited
amount of highly classified information that we are not even
privy to. Thank you.
Chairman Peters. Thank you. Ranking Member Paul for a
comment.
Senator Paul. Just following along this train of thought.
How does Congress force the administration to give up
information? How did it work historically? Once upon a time,
what would happen is the Chairman of the Appropriations, for
HHS, would call the White House, and they would simply say, you
give the records or you quit getting money.
That had maybe at one point in time more bipartisanship,
that it was us against them. It was the legislature and the
people versus the Executive Branch. The power of the purse
still could be used, but it is never used.
But the power of the purse could be used. I am not saying
this is a partisan thing, because I think some on the
Republican side have been unwilling to use it also. Because
some of the records you wanted to get when you were Chairman of
the Committee, when we were in the majority, and you struggled
to get, you could have gotten much easier if the Chairman of
Appropriations Republican would have said no more money.
I would just argue that it is part of this larger debate we
are having over the power of the purse. The power of the purse
is we do not give money to these agencies that have grown so
large unless they give us information. Almost everything I want
is unclassified already. I want to know the deliberations.
When Anthony Fauci said that all of his scientists up and
down the chain said that this is not gain of function, that
this is not dangerous research that was going on in Wuhan. I
want to see the deliberations. There is a meeting at NIH,
periodic meeting, called the Dual Use Research of Concern/Gain
of Function Meeting. They discuss whether something's gain of
function and whether it should be referred to another security
level, to the Potential Pandemic Pathogen Care and Oversight
Committee (P3CO) for review.
That did not happen because Anthony Fauci says we all
discussed it and we said it was not gain of function. That the
deliberations over what is gain of function, what is not,
should be public knowledge because they made a mistake. The
research was incredibly dangerous, and we got a pandemic
because of that.
Someone made a judgment error, someone judged this research
to be safe, and it did not have to go to the safety committee
for review. That is what needs to happen, and not just to pass
judgment on them. Maybe there was a debate and there were two
scientists on one side and another on the other, but we have to
learn from that debate because they failed to recognize how
dangerous that research is. But I cannot get that information.
I do not think anything at the NIH there may be classified
stuff, but it is not.
Back to Senator Hawley's bill on declassifying this. We are
aware that there is an enormous amount of biological research
in the defense apparatus of our government, and it did not come
across in 10 pages. There was not even a touch of any of that.
I think we are still being stiff armed, and I hope we can get
bipartisan cooperation.
But I think we have to have penalties in there. If you just
tell them what to do, they will ignore it. Yes, you have to
take their money, or take their job, or punish them financially
if they are breaking the law. Thank you.
Chairman Peters. Ms. Weismann, after June of this year,
NARA will no longer accept Executive Branch records in paper
form. Could you explain the magnitude of this policy change and
the challenges that it poses to NARA, and quite frankly, the
rest of the Executive Branch?
Ms. Weismann. Yes. I do not have precise numbers. I did
read recently an estimate that as of a few years ago, on a
daily basis, government employees sent or received over one
billion emails. That's a day, and that's one form of record.
Now, obviously, all emails are not going to qualify as records
that need to be preserved, but I think it gives you a window
into the magnitude of the problem, which really is enormous.
NARA is going to be faced with ingesting billions and
billions of records, and put in digital and electronic form.
Its job is going to be complicated by the fact that there are
still some agencies who follow a print-to-paper practice, which
means rather than storing their electronic messages, their
emails electronically, they print them out and put them in a
paper file.
The technological capabilities of agencies differ widely.
They do not all use the same technology, and the technology has
different capabilities at different agencies. Agencies,
historically, have not coordinated their record keeping. People
do not cooperate, coordinate with the information technology
(IT) people.
Typically, at an agency, there is a real disconnect between
the record keeping people and the technology side of the
agency, which is going to complicate NARA's job enormously.
They just don't have a uniform way, agencies, of capturing and
preserving these records.
I think it is fair to say that without money and other
resources, I do not see how NARA can perform this statutorily
prescribed job. It needs more people and it needs more money.
Without that, I think, it is probably doomed to fail because
this is such an enormous undertaking.
Chairman Peters. Resources, obviously, always needed as you
are dealing with the volume that you are speaking about, but
you also need some technological advancements. Are there things
out there that the government could be using that is available,
but we are not?
Ms. Weismann. My understanding, and this is definitely not
my area of expertise, is artificial intelligence (AI). This is
an area where AI may be of some assistance. I certainly think
it is something that NARA should be studying and looking for
ways to improve the way of ingesting and maintaining these
records.
I do think that agencies have to be brought into the 21st
century with the framework they have for creating and
preserving these records as well. Again, I know this is a
difficult thing to tell Congress, but I think that also means
more money for agencies to upgrade their technology.
Chairman Peters. Great. Thank you. Mr. Ruskin, certainly,
you have spoken quite a bit about the importance of government
transparency, and you brought up a number of issues related to
FOIA, which I think is important. In addition to having access
to these records, which we obviously need, which is a serious
issue that we want to address, it is still important to have
good records management by the agencies.
You have to start with good records management, then you
have the access to it which is necessary for us to provide our
oversight function. But talk about that. Why is a Records Act
that modernizes and strengthens the keeping of these records,
which is our attempt in this legislation we're proposing, why
is that so important for FOIA? Why do we have to do that?
Mr. Ruskin. Yes. It is so important because, first, this is
how we citizens hold our Members of Congress accountable and
our entire Federal branch accountable is by reading these
documents. Our journalists read these documents, and that is
how we know who has done well and who has not.
Public trust in our government is in decline right now, and
there is so much partisanship. The ability to keep Federal
records, and to produce them when citizens want them and need
them is crucial to public trust, and crucial to increasing
public trust at a time when our government is having troubles
with trust.
For these reasons, also historical reasons, we citizens
ultimately in this country are in charge. In order to be in
charge, we need the documents that our Federal Government
produces in order to make decisions about how we as a people
will govern ourselves.
Chairman Peters. Thank you. First of all, I want to thank
Ranking Member Paul for holding this hearing with me today. I'd
also like to thank both of our witnesses. We look forward to
continuing to work with both of you as we work on legislation
to strengthen the Records Act.
Preserving Federal records is critically important.
Accurate records allow us to maintain transparency, to protect
our nation's historical record, and also ensure that the
Federal Government is working for the American people each and
each and every day.
As today's witnesses explain, the laws and systems we use
to preserve Federal records are outdated, and it requires
congressional action to change that, and that's why I'm working
on legislation that will modernize our recordkeeping practices
that will strengthen enforcement of our record laws, which is
absolutely critical.
And Ranking Member Paul and I are in agreement with that,
in bringing our policies up to date with emerging technologies,
whether it be AI or other systems that can help us manage the
massive amount of data that is being stored.
My legislation would prohibit Federal officials from
automatically deleting records from disappearing message
application. It also expands congressional insight into
violations of Federal records law, and it will require NARA and
Federal agencies to take additional steps to recover lost
records. If we advance this legislation and provide NARA with
the resources it needs, I believe that we can address many of
the issues that were discussed here today.
This record, the record for this hearing, will remain open
for 15 days until 5 o'clock p.m. on April 4th, 2024, for the
submission of Statements and for questions for the record.
This hearing is now adjourned.
[Whereupon, at 11:01 a.m., the hearing was adjourned.]
A P P E N D I X
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