PDF Version (with full text and attachments) (5.4 MB)
INFORMATION POLICY IN THE 21st CENTURY: A REVIEW OF THE FREEDOM OF
INFORMATION ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
FINANCE, AND ACCOUNTABILITY
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 11, 2005
__________
Serial No. 109-46
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
22-705 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland
JON C. PORTER, Nevada BRIAN HIGGINS, New York
KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of
LYNN A. WESTMORELAND, Georgia Columbia
PATRICK T. McHENRY, North Carolina ------
CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont
VIRGINIA FOXX, North Carolina (Independent)
------ ------
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on Government Management, Finance, and Accountability
TODD RUSSELL PLATTS, Pennsylvania, Chairman
VIRGINIA FOXX, North Carolina EDOLPHUS TOWNS, New York
TOM DAVIS, Virginia MAJOR R. OWENS, New York
GIL GUTKNECHT, Minnesota PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
JOHN J. DUNCAN, Jr., Tennessee
Ex Officio
HENRY A. WAXMAN, California
Mike Hettinger, Staff Director
Tabetha Mueller, Professional Staff Member
Nathaniel Berry, Clerk
Adam Bordes, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on May 11, 2005..................................... 1
Statement of:
Smith, Jay, chairman, Newspaper Association of America and
president, Cox Newspapers, Inc.; Ari Schwartz, associate
director, Center for Democracy and Technology; and Mark
Tapscott, director, Center for Media and Public Policy, the
Heritage Foundation........................................ 125
Schwartz, Ari............................................ 136
Smith, Jay............................................... 125
Tapscott, Mark........................................... 146
Weinstein, Allen, Archivist of the United States, accompanied
by Michael Kurtz, Assistant Archivist for Records Programs,
National Archives and Records Administration; Carl Nichols,
Deputy Assistant Attorney General, Federal Programs Branch,
Civil Division, U.S. Department of Justice; and Linda
Koontz, Director of Information Management, Government
Accountability Office...................................... 47
Koontz, Linda............................................ 78
Nichols, Carl............................................ 58
Weinstein, Allen......................................... 47
Letters, statements, etc., submitted for the record by:
Cornyn, Hon. John, a Senator in Congress from the State of
Texas, prepared statement of............................... 7
Koontz, Linda, Director of Information Management, Government
Accountability Office, prepared statement of............... 80
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York, prepared statement of............... 44
Nichols, Carl, Deputy Assistant Attorney General, Federal
Programs Branch, Civil Division, U.S. Department of
Justice, prepared statement of............................. 61
Platts, Hon. Todd Russell, a Representative in Congress from
the State of Pennsylvania, letter dated May 9, 2005........ 3
Schwartz, Ari, associate director, Center for Democracy and
Technology, prepared statement of.......................... 138
Smith, Jay, chairman, Newspaper Association of America and
president, Cox Newspapers, Inc., prepared statement of..... 128
Tapscott, Mark, director, Center for Media and Public Policy,
the Heritage Foundation, prepared statement of............. 148
Towns, Hon. Edolphus, a Representative in Congress from the
State of New York, prepared statement of................... 39
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 25
Weinstein, Allen, Archivist of the United States, prepared
statement of............................................... 51
INFORMATION POLICY IN THE 21st CENTURY: A REVIEW OF THE FREEDOM OF
INFORMATION ACT
----------
WEDNESDAY, MAY 11, 2005
House of Representatives,
Subcommittee on Government Management, Finance, and
Accountability,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:05 p.m., in
room 2247, Rayburn House Office Building, Hon. Todd Russell
Platts (chairman of the subcommittee) presiding.
Present: Representatives Platts, Waxman, Towns, Duncan, and
Maloney.
Staff present: Mike Hettinger, staff director; Dan Daly,
counsel; Tabetha Mueller, professional staff member; Jessica
Friedman, legislative assistant; Nathaniel Berry, clerk; David
Rapallo, minority counsel; Adam Bordes, Anna Laitin, and David
McMillen, minority professional staff members; and Jean Gosa,
minority assistant clerk.
Mr. Platts. A quorum being present, this hearing of the
Government Reform Subcommittee on Management, Finance, and
Accountability will come to order.
The information age has given us unprecedented capabilities
to disseminate and collect information. With the worldwide
deployment of the Internet, information is available from
around the globe 24 hours a day, 7 days a week. It has changed
the way citizens get information from their government and how
government serves its citizens.
At the same time, technological advances subject us to new
threats, both to our security and our right to privacy. One
could argue that effective information policy in government has
never been more important than it is today and that the
balancing act has never been more difficult.
The Freedom of Information Act [FOIA], was signed into law
almost 40 years ago in 1966. Enacted after 11 years of debate,
FOIA established a statutory right of public access to
executive branch information.
FOIA provides that any person has a right to obtain Federal
agency records. Originally, the act included nine categories of
information protected from disclosure. Congress has added
additional exemptions over time. Recent legislative proposals
would make significant changes to the exemptions and create new
deadlines for agency compliance.
As Congress considers changing FOIA, it is important to
understand the underlying intent of the act and how recent
changes in technology and national security have affected FOIA
implementation. Balancing the need for open government with the
need to protect information vital to national security and
personal privacy is a constant struggle. Federal departments
and agencies are operating in the post-September 11 information
age and face 21st century security information management and
resource challenges.
This hearing will give the subcommittee members an
opportunity to hear the Department of Justice, the agency
responsible for providing for the guidance Government-wide, and
the National Archives and Records Administration which faces a
huge task of electronically archiving millions of Government
documents. Witnesses from these agencies will testify on their
experience implementing FOIA.
The subcommittee will also hear from FOIA requesters to
understand the opportunities to improve the process for
obtaining information.
We are pleased to have two panels of distinguished
witnesses here today. Our first panel includes the honorable
Allen Weinstein, Archivist of the United States from the
National Archives and Records Administration and Mr. Carl
Nichols, Deputy Assistant Attorney General at the Department of
Justice Civil Division, Federal Programs Branch. These
executive branch witnesses are joined by Ms. Linda Koontz, the
Director of Information Management for the Government
Accountability Office.
Our second panel will include Mr. Jay Smith, chairman of
the Newspaper Association of America and president of Cox
Newspapers; Mr. Ari Schwartz, associate director of the Center
for Democracy and Technology and Mr. Mark Tapscott, director of
the Center for Media and Public Policy of the Heritage
Foundation. We certainly appreciate all of our witnesses being
here today and we look forward to your oral testimonies.
Before I recognize our ranking member, Mr. Towns, I have
two items I'd like to submit for the record. My esteemed
colleague, Mr. Shays of Connecticut, has asked to have
information included on the use of FOIA exemptions by the
National Science Foundation.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T2705.001
[GRAPHIC] [TIFF OMITTED] T2705.002
[GRAPHIC] [TIFF OMITTED] T2705.003
Mr. Platts. Senator Cornyn of Texas has requested that a
statement be inserted into the record as well.
Without objection, it is now ordered.
[The prepared statement of Senator Cornyn follows:]
[GRAPHIC] [TIFF OMITTED] T2705.004
[GRAPHIC] [TIFF OMITTED] T2705.005
[GRAPHIC] [TIFF OMITTED] T2705.006
[GRAPHIC] [TIFF OMITTED] T2705.007
[GRAPHIC] [TIFF OMITTED] T2705.008
[GRAPHIC] [TIFF OMITTED] T2705.009
[GRAPHIC] [TIFF OMITTED] T2705.010
[GRAPHIC] [TIFF OMITTED] T2705.011
[GRAPHIC] [TIFF OMITTED] T2705.012
[GRAPHIC] [TIFF OMITTED] T2705.013
[GRAPHIC] [TIFF OMITTED] T2705.014
[GRAPHIC] [TIFF OMITTED] T2705.015
[GRAPHIC] [TIFF OMITTED] T2705.016
[GRAPHIC] [TIFF OMITTED] T2705.017
[GRAPHIC] [TIFF OMITTED] T2705.018
[GRAPHIC] [TIFF OMITTED] T2705.019
[GRAPHIC] [TIFF OMITTED] T2705.020
Mr. Platts. It is now my pleasure to yield to the ranking
member, the gentlemen from New York, Mr. Towns, for the
purposes of an opening statement.
Mr. Towns. Thank you very much, Mr. Chairman. What I would
like to do is to yield to the ranking member of the full
committee.
Mr. Waxman. You may go ahead.
Mr. Towns. Well, I'm allowing you to go first.
Mr. Platts. Mr. Waxman from California is recognized.
Mr. Waxman. Well, I thank you very much for yielding to me.
I would have waited my turn, but I'll take your generosity.
Thank you, Chairman Platts, for holding today's hearing.
Our subject today is the law that keeps Government open and
accountable, the Freedom of Information Act. The premise of the
Freedom of Information Act is that our democracy depends on
informed citizens. Yet over the past 4 years we have witnessed
an unprecedented assault on the Freedom of Information Act and
our Nation's other open Government laws.
The Bush administration has undermined the Nation's
sunshine laws while simultaneously expanding the power of
Government to act in the shadows. The presumption of disclosure
under the Freedom of Information Act has been overturned.
Public access to Presidential records has been curtailed.
Classification and pseudo-classification are on the rise.
These trends are ominous and they are carefully documented in a
report my staff prepared last fall.
I would like to ask unanimous consent to make this report
part of the hearing record.
Mr. Platts. Without objection it is so ordered.
[The prepared statement of Hon. Henry A. Waxman follows:]
[GRAPHIC] [TIFF OMITTED] T2705.021
[GRAPHIC] [TIFF OMITTED] T2705.022
[GRAPHIC] [TIFF OMITTED] T2705.023
[GRAPHIC] [TIFF OMITTED] T2705.024
[GRAPHIC] [TIFF OMITTED] T2705.025
[GRAPHIC] [TIFF OMITTED] T2705.026
[GRAPHIC] [TIFF OMITTED] T2705.027
[GRAPHIC] [TIFF OMITTED] T2705.028
[GRAPHIC] [TIFF OMITTED] T2705.029
[GRAPHIC] [TIFF OMITTED] T2705.030
[GRAPHIC] [TIFF OMITTED] T2705.031
[GRAPHIC] [TIFF OMITTED] T2705.032
Mr. Waxman. A bipartisan group of Senators and
Representatives have taken important steps to improve the
operations of the Freedom of Information Act. They have
introduced two bills that aim to speed up agency response to
FOIA requests and fix weaknesses in the act.
I look forward to this committee's consideration of the two
bills and hope that we will be able to work together to improve
the Freedom of Information Act. But the Bush administration's
wholesale assault on open Government demands that Congress do
more. This week I will be reintroducing the Restore Open
Government Act. The legislation restores the presumption that
Government operations should be transparent. It overturns
President Bush's Executive order curtailing public access to
Presidential records. It prohibits the executive branch from
creating secret Presidential advisory committees and eliminates
unnecessary secrecy at the Department of Homeland Security.
In addition, this year's version of the bill addresses the
disturbing new trend of agencies relying on undefined new
pseudo-classifications to protect information from public
disclosure. The best known of these designations are
``sensitive but unclassified'' and ``for official use only.''
But there are many others. Most of these designations have
no statutory or regulatory basis, yet they are being used to
keep important information from the public. Open and
accountable government is the bedrock principle of our
democracy. Secrecy breeds arrogance and abuse of power.
Sunshine fosters scrutiny and responsible government. The bill
I will introduce this week restores the presumption that a
strong government must remain open to scrutiny.
Mr. Chairman, I want to thank you again for holding this
hearing and for your interest in the Freedom of Information Act
and I want to thank Ranking Member Towns for yielding his time.
Mr. Platts. Thank you, Mr. Waxman. I appreciate the ranking
member keeping me in proper order of seniority. I didn't see
you come in, Mr. Waxman. It was appropriate that you were
recognized next.
I now yield to Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman, for holding
this hearing on Government Information Policy and the Freedom
of Information Act. It is a pleasure to have such a broad range
of witnesses. Their diverse views will afford us a better
context for balancing the interests of government
accountability and national security.
Like most of us I believe the cornerstone of a free and
democratic society rests upon the principle of public access to
governmental activity. By ensuring such access to governmental
institutions and deliberations we are less likely to make ill-
advised decisions concerning the welfare of our country and
more accountable for the decisions we have made.
We must also reassess the deficiencies associated with
processing FOIA requests. A more technological advanced public
information process should result in improvement to the timely
and efficient disclosure of agency records.
That doesn't, however, seem to be what has happened. In
2004, agencies reported having 160,000 outstanding FOIA
requests. From the prior 2003 cycle, an increase of about 15
percent. Another way to put it: We are going in the wrong
direction.
Nevertheless, the sheer volume of requests is having a
severe impact on agency resources and information technology
components and it may be impacting the time it takes for
certain agencies to complete FOIA requests. In 2004 alone the
Federal Government received roughly 4 million FOIA requests, an
increase of 25 percent over 2003.
Knowing this, perhaps the agency community should reexamine
its methods of utilizing information technology in the FOIA
process.
In closing, I look forward to hearing from both panels. I
hope our subcommittee can become a catalyst for more effective
and practical public information policies.
Mr. Chairman, at this time I would like to submit a letter
written by a constituent of Senator Leahy's named Charlotte
Dennett. Her correspondence details the difficulty many
individuals face in receiving timely and complete responses
from the Government to their FOIA request. I am asking
unanimous consent that this be included in today's hearing
record.
Mr. Platts. Without objection, it is so ordered.
[The prepared statement of Hon. Edolphus Towns follows:]
[GRAPHIC] [TIFF OMITTED] T2705.033
[GRAPHIC] [TIFF OMITTED] T2705.034
[GRAPHIC] [TIFF OMITTED] T2705.035
[GRAPHIC] [TIFF OMITTED] T2705.036
Mr. Towns. On that note I yield back.
Mr. Platts. Thank you, Mr. Towns.
We now recognize the gentlelady from New York, Mrs.
Maloney, for purposes of an opening statement.
Mrs. Maloney. Thank you very much. I request permission to
place my statement in the record.
Mr. Platts. It is so ordered.
Mrs. Maloney. I would like to be associated with the
comments of my two colleagues and mention that along with
Steven Horn in 1996 we authored and passed the electronic
Freedom of Information Act of 1996, trying to move FOIA into
the 21st century. Some agencies have been better than others in
complying.
But I feel very, very strongly that the law needs to be
strengthened. Many constituents will say that they file a
Freedom of Information Act on such basic things as the
Government taking of their property and they can't get a
response for years and years and years and years and that when
they do get a response three-fourths of it is blacked out and
it says we have made a decision that you don't have a right to
see this.
I think one thing that we have to work on in this committee
and others is, in addition to the two bills that Mr. Waxman
mentioned and I am co-sponsoring the bill that he is
introducing which I strongly support, is some type of review
when government makes a decision to darken out information and
not supply it to the public.
In some cases it has been whistle-blowers who can't even
get the information of why they lost their job or whatever. I
think that a strong government is one that allows people to see
what is going on, that can make it stronger and make better
decisions.
But I think we need a level to oversee the governmental
decisions when they decide to black out entire sections and
that all you are left with is, I made a phone call to someone,
as opposed to why the action took place in the first place. So
I think it is a very important law, but I think it is one that
definitely needs to be strengthened.
I yield back and would like to place in the record my
statement. Thank you.
Mr. Platts. It is so ordered. Thank you, Mrs. Maloney.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
[GRAPHIC] [TIFF OMITTED] T2705.037
[GRAPHIC] [TIFF OMITTED] T2705.038
[GRAPHIC] [TIFF OMITTED] T2705.039
Mr. Platts. We will now move to our first panel of
witnesses. I would ask each of our witnesses in this first
panel and any others who will be advising you as part of your
testimony here today to rise and be sworn in with the oath.
[Witnesses sworn.]
Mr. Platts. Thank you. You may be seated. The clerk will
note that the witnesses affirmed the oath. We appreciate your
written testimonies that you provided. We would ask that you
try to stay within about a 5-minute timeframe for your opening
statements here today.
Dr. Weinstein, I know that you are going to have to leave
after the presentations of the panel. We appreciate your being
here for your testimony and your insights and your staff who
will remain with us.
STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE UNITED STATES,
ACCOMPANIED BY MICHAEL KURTZ, ASSISTANT ARCHIVIST FOR RECORDS
PROGRAMS, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; CARL
NICHOLS, DEPUTY ASSISTANT ATTORNEY GENERAL, FEDERAL PROGRAMS
BRANCH, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE; AND LINDA
KOONTZ, DIRECTOR OF INFORMATION MANAGEMENT, GOVERNMENT
ACCOUNTABILITY OFFICE
STATEMENT OF ALLEN WEINSTEIN
Mr. Weinstein. Thank you, Mr. Chairman. Good afternoon, Mr.
Chairman and members of the subcommittee and subcommittee
staff. I am Allen Weinstein. I am Archivist of the United
States. It is my distinct pleasure to be with you this
afternoon.
I am accompanied today by Dr. Michael Kurtz, Assistant
Archivist for Records Programs at the Archives. Dr. Kurtz has
responsibility for managing the bulk of our FOIA operations. He
is very experienced in the implementation of FOIA in the
National Archives.
As we discussed last week, Mr. Chairman, I am most
appreciative of your understanding regarding my schedule today.
I am actually, at this moment, chairing a board meeting of the
National Historic Publications and Records Commission, NHPRC,
at the Archives. So I am going back to that. I will have to
excuse myself after my opening statement, after listening to
the other opening statements.
But this is such an important subject and it is my first
invitation to testify before the subcommittee, I wanted to make
every effort to attend. Dr. Kurtz will stay. He will answer any
operational questions that you might have regarding our FOIA
implementation.
Now, Mr. Chairman, as I told you in your office, I have a
rather unique perspective on FOIA, which is that I was a FOIA
litigant long before I was implementing FOIA. Back in the
1970's, with the assistance of the American Civil Liberties
Union, I sued the Federal Bureau of Investigations for its
files on the Alger Hiss case.
As it turned out, when I received those files in 1975 and
1976 it was one of the first times that major files of
historical significance were released by the Bureau to a
litigant, maybe the first time, I don't really know. So I have
watched the experience that way. I have been a litigant. I have
watched others. I have used the materials under FOIA request. I
find myself now in the position of implementing FOIA matters.
To summarize my statement, Mr. Chairman, the National
Archives and Records Administration is our Nation's record
keeper, as you know. The National Archives was created in 1934
and our mission is to preserve and maintain the permanently
valuable records of the Government of the United States,
records that document the rights of citizens, the actions of
Government officials and the national experience.
We acquire, preserve and make available for research
records of enduring value created or received by organizations
of the Federal Government. We have been making records
available to the public since long before FOIA was adopted. The
vast majority of NARA's holdings are unrestricted and available
for research by the public.
By one count--I can't verify this, I have only been there
2\1/2\ months--but by one count there are 1 billion documents
alone in the National Archives Building downtown. I am going to
count every one of those so I will become an expert.
Mr. Platts. Mr. Weinstein, would you just bring the mic a
little closer to you? We are having sound trouble.
Mr. Weinstein. I'll be back to the committee once I have
counted all those documents to assure that there are 1 billion
there. If there are any missing, you will be the first to hear
about it.
Now, the vast majority of our holdings, as I said, are
unrestricted, available for research. Many records are open for
research at the time they are first accessioned into NARA. A
researcher does not need to use FOIA to have access to our open
records. We make available millions of pages through hundreds
of thousands of researches every year in this manner. In fact,
the last fiscal year NARA answered 1,100,000 written requests,
excluding FOIAs, for access to accessioned documents.
The FOIA is used at the National Archives for the much more
limited basis of requesting that records of executive branch
agencies in our holdings that have access restrictions. FOIA is
also used to request Vice Presidential and Presidential records
from the administrations of Presidents Ronald Reagan, George
H.W. Bush and William Clinton under the provisions of the
Presidential Records Act. Clinton Presidential records will
become subject to FOIA on January 20, 2006.
But I should stress that records of the judicial branch,
the legislative branch, as you know, donated historical
materials and the Nixon Presidential historical materials are
not subject to FOIA.
When records are accessioned by NARA, these records become
a permanent part of the history of this Nation. They are no
longer working papers of the agencies that created or received
them, but are transformed into historically valuable documents
necessary for understanding the policies, programs and actions
of the various departments and agencies of the executive
branch.
Once these records are in our legal custody it becomes
NARA's responsibility to make access determinations consistent
with provisions of FOIA. This is very important because the
passage of time often diminishes the need to restrict many
types of information. Information that may be sensitive at the
earlier stages of the record's life cycle has often lost its
sensitivity once it is among our holdings. And we make access
decisions based upon this changed status.
While it is our responsibility to make access
determinations on the records that are subject to FOIA in our
custody, there are two areas over which we have no discretion
to make access decisions. The first exception, as you know, for
national security information that is classified pursuant to
the current Executive order, FOIA Exemption B-1. This
information can only be declassified by the agency that
classified it. The lengthy referral process necessary to review
records for declassification is the primary reason for the
backlogs at many agencies, including NARA currently face.
Mr. Chairman, I just want to assure the members of this
committee that I am dismayed by the backlog. Anything we can do
to address that situation we are going to do. But give us a
little time.
The second exception is for information that cannot be
released under other statutes passed by the Congress, FOIA
Exemption B-3.
While the passage of time lessens the need to restrict most
types of information, we recognize that some information
continues to be sensitive for many years. I believe that NARA's
greatest strength in implementing our FOIA policy is that the
spirit of the FOIA is consistent with NARA's mission.
The FOIA is a disclosure statute and NARA is an agency
dedicated to ensuring that the records of our national history
are available to the public in the most complete format
possible. Our mission of openness is complimented by the
extremely knowledgeable FOIA staff, Dr. Kurtz among them, which
has for many years had experience in processing FOIA requests.
Furthermore, we have developed electronic tracking and
reduction systems to streamline our FOIA processing. While NARA
faces many challenges in implementing our FOIA program, one of
the most difficult is providing access to electronic records.
We are accessing an increasing volume of records that are born
digital. All of these record systems pose and present access
problems. These records are often produced on different types
of hardware, using a wide range of software. Searching,
reviewing, redacting and providing access to these records
continues to be a very serious challenge for us.
The second challenge we face is the timeliness issue. While
we have been successful in responding to a high percentage of
our FOIA requests within the 20-day time period, requests for
records of high researcher interest and/or of recent origins in
many instances cannot be completed within the 20-day period.
Part of this problem can be explained by the lengthy
process necessary for declassifying documents. It must be
understood, however, that documents that concern very sensitive
privacy matters, Exemption B-6; law enforcement issues,
Exemption B-7; business information, Exemption B-4 or
vulnerability assessments of systems and facilities, Exemption
B-2, simply cannot be carefully processed within the 20-day
period. This is especially true if the request is for
voluminous records or multiple files.
Mr. Chairman, this concludes my formal opening remarks. I
just wanted to make one additional point. No one in Government
that I know of treats the FOIA issue with more seriousness than
my colleagues and I do at NARA. So, this committee will have
the benefit of our cooperation and our support as it goes on
with its work.
Thank you very much.
[The prepared statement of Mr. Weinstein follows:]
[GRAPHIC] [TIFF OMITTED] T2705.040
[GRAPHIC] [TIFF OMITTED] T2705.041
[GRAPHIC] [TIFF OMITTED] T2705.042
[GRAPHIC] [TIFF OMITTED] T2705.043
[GRAPHIC] [TIFF OMITTED] T2705.044
[GRAPHIC] [TIFF OMITTED] T2705.045
[GRAPHIC] [TIFF OMITTED] T2705.046
Mr. Platts. Thank you for your testimony.
Mr. Nichols.
STATEMENT OF CARL NICHOLS
Mr. Nichols. Thank you, Mr. Chairman and members of the
committee. My name is Carl Nichols. I am the Deputy Assistant
Attorney General for the Civil Division, Federal Programs
Branch at the Department of Justice, which, among other things,
oversees Freedom of Information Act related litigation.
I am pleased to appear before the subcommittee to address
the subject of FOIA, the principal statute governing public
access to Federal Government records and information. This law,
which has been in effect for 38 years, has become an essential
part of our democratic system of government, a vital tool used
by our citizens to learn about their Government's operations
and activities.
It is an honor to testify on behalf of the Government
employees who respond to millions of FOIA requests processed by
the executive branch every year.
The administration and the Attorney General are firmly
committed to full compliance with FOIA as a means of
maintaining an open and accountable system of government, while
also recognizing the importance of safeguarding national
security, enhancing law enforcement effectiveness, respecting
business confidentiality and preserving personal privacy.
Indeed, as part of its responsibilities for the
administration of FOIA, the executive branch spends in excess
of $300 million per year responding to FOIA requests, only a
tiny fraction of which is reimbursed to the Treasury by
requesters.
The Government employees who process and respond to the 4
million FOIA requests every year are a group of dedicated
public servants who discharge their duties with vigor,
diligence and professionalism.
The Department of Justice is the lead Federal agency for
FOIA and encourages uniform and proper compliance by all
Federal agencies through its Office of Information and Privacy.
As you may recall, FOIA was strengthened by the Electronic
Freedom of Information Act Amendments of 1996, referred to as
E-FOIA. The amendments brought FOIA into the modern electronic
age by addressing electronic record issues, timeliness of
agency responses to FOIA requests and other procedural matters
under the act.
The provisions increased initial time for responding to
FOIA requests from 10 to 20 working days; authorized agencies
to process FOIA requests in multiple tracks, encouraged
agencies to negotiate FOIA request sizes and response times
with requesters; and established a mechanism for the expedited
processing of FOIA requests filed by members of the news media.
Additionally, pursuant to the E-FOIA amendments, all
Federal agencies have established specialized FOIA Web sites
that have become a major part of Government-wide FOIA
administration.
The biggest challenge facing the Federal Government under
FOIA is the issue of timely processing of requests. Agencies
respond to FOIA requests as quickly as possible. When a
complete response is not possible, letters of acknowledgment
routinely are provided to inform requesters of the action being
taken concerning their requests.
Many factors affect the timing of responses such as the
number of incoming requests, the number of office components
with responsive documents, the number of office components that
must be consulted, the size and complexity of the requests, the
resources available to the agency, and the availability of the
records.
This administration welcomes and encourages communications
between FOIA personnel and requesters, especially where a
complex request is involved or where there is an issue
regarding the availability of responsive records.
There are good reasons that not all Federal agencies are
able to regularly comply with the strict time limits of the
act, particularly those agencies required to meet large volume
FOIA demands or demands for particularly sensitive needs.
Federal agencies, of course, have primary missions that
place high demands on limited resources. This is especially
true in the post-September 11th world. Such limited resources
make it increasingly difficult to administer FOIA with the
timeliness that all concerned would prefer. As a result,
substantial burdens are placed upon limited agency resources
and the Government employees who respond to FOIA requests. In
sum, no discussion about FOIA can be complete without a serious
and sustained examination of the resource and personnel needs
faced by the executive branch in administering FOIA.
As members of the subcommittee are well aware, nine
categories of records are considered exempt from mandatory
disclosure under the act. It must be emphasized for the record
that these exemptions are central to the purposes of the act
because while the basic purpose of FOIA is to ensure an
informed citizenry, FOIA balances society's strong interest in
open government with other equally compelling public interests
such as protecting national security, enhancing the
effectiveness of law enforcement, protecting sensitive business
information, protecting internal agency deliberations and
common law privileges and, not least, preserving personal
privacy.
We believe that the current system of collecting fees for
FOIA requests has benefited many requesters, as evidenced by
the fact that requesters currently pay a mere 2.09 percent of
the total costs associated with FOIA compliance.
At the same time these fees impose a modest financial
incentive upon those requesters who make FOIA requests for
commercial purposes to submit reasonable described requests.
The Department of Justice believes that this is important
because the statute itself places few limitations on the scope
of a request. Appropriate fees are necessary to provide a
reasonable disincentive for frivolous or over-broad requests.
In conclusion, since its enactment in 1966, FOIA has firmly
established an effective statutory means of public access,
where warranted, to executive branch information. But the goal
of achieving and informed citizenry must be balanced against
other vital societal aims such as national security, the
public's interest in effective and efficient operations of
government, the prudent use of limited taxpayer dollars and the
preservation of the confidentiality and security of sensitive
personnel, commercial, and governmental information.
I would be pleased to address any question you or any other
member of the subcommittee might have on the subject.
[The prepared statement of Mr. Nichols follows:]
[GRAPHIC] [TIFF OMITTED] T2705.047
[GRAPHIC] [TIFF OMITTED] T2705.048
[GRAPHIC] [TIFF OMITTED] T2705.049
[GRAPHIC] [TIFF OMITTED] T2705.050
[GRAPHIC] [TIFF OMITTED] T2705.051
[GRAPHIC] [TIFF OMITTED] T2705.052
[GRAPHIC] [TIFF OMITTED] T2705.053
[GRAPHIC] [TIFF OMITTED] T2705.054
[GRAPHIC] [TIFF OMITTED] T2705.055
[GRAPHIC] [TIFF OMITTED] T2705.056
[GRAPHIC] [TIFF OMITTED] T2705.057
[GRAPHIC] [TIFF OMITTED] T2705.058
[GRAPHIC] [TIFF OMITTED] T2705.059
[GRAPHIC] [TIFF OMITTED] T2705.060
[GRAPHIC] [TIFF OMITTED] T2705.061
[GRAPHIC] [TIFF OMITTED] T2705.062
[GRAPHIC] [TIFF OMITTED] T2705.063
Mr. Platts. Thank you, Mr. Nichols.
Ms. Koontz.
STATEMENT OF LINDA KOONTZ
Ms. Koontz. Mr. Chairman and members of the committee, I
appreciate the opportunity to participate in the subcommittee's
hearing on the implementation of the Freedom of Information
Act.
As you know, under the act, agencies are required to report
annually to the Attorney General providing specific information
about their FOIA operations. Over the past several years we
have been reviewing and summarizing these annual reports for
the 24 agencies subject to the Chief Financial Officers Act and
the CIA.
Based on this work a number of trends are apparent. First,
citizens have been requesting and receiving an ever-increasing
amount of information from the Federal Government through FOIA.
Based on data reported by agencies, the number of requests
received increased by 71 percent from 2002 to 2004.
In recent years the Veterans Administration and the Social
Security Administration have accounted for many of the total
requests. In 2004 these two agencies accounted for about 82
percent of total requests.
As more requests come in, agencies also report that they
have been processing more of them, 68 percent more in 2002 to
2004. However, at the same time the number of pending requests
carried over from year to year, also known as the backlog, has
also been increasing, rising 14 percent since 2002.
In 2004 about 92 percent of FOIA requests Government-wide
were reported to have been granted in full. A relatively small
number were partially granted and about 1 percent were denied.
Without VA and Social Security 61 percent of requests were
granted in full; 15 percent partially granted and 2 percent
denied. However, the number of fully granted requests varied
widely among the agencies in fiscal year 2004. For example,
three agencies, State, CIA and the National Science Foundation
make full grants of requested records in less than 20 percent
of the cases they processed. We also saw this variation in
previous years as well.
In regard to timeliness, reported time required to process
requests varied considerably by agency. For example, 11 agency
components reported processing simple requests in median times
of less than 10 days. However, other agency components are
taking much more time to process simple requests and in some
cases reported median processing time in excess of 100 days.
However, we were unable to determine trends in processing
times at the agency level because agencies have generally
reported median processing time at a component level, making it
difficult to drive an agency-level picture.
In addition, the use of a single median time to
characterize how long processing takes instead of a range of
completion times and the number of requests for each does not
provide a complete picture of agency performance.
In summary, Mr. Chairman, FOIA continues to be a valuable
tool for citizens to obtain information about the operations
and decisions of the Federal Government. Given the steadily
increasing workload, it will remain critically important that
strong oversight of FOIA implementation continue.
We look forward to working with you and your staff to
ensure that agencies remain responsive to the needs of
citizens. That concludes my statement. I would be happy to
answer questions. Thank you.
[The prepared statement of Ms. Koontz follows:]
[GRAPHIC] [TIFF OMITTED] T2705.064
[GRAPHIC] [TIFF OMITTED] T2705.065
[GRAPHIC] [TIFF OMITTED] T2705.066
[GRAPHIC] [TIFF OMITTED] T2705.067
[GRAPHIC] [TIFF OMITTED] T2705.068
[GRAPHIC] [TIFF OMITTED] T2705.069
[GRAPHIC] [TIFF OMITTED] T2705.070
[GRAPHIC] [TIFF OMITTED] T2705.071
[GRAPHIC] [TIFF OMITTED] T2705.072
[GRAPHIC] [TIFF OMITTED] T2705.073
[GRAPHIC] [TIFF OMITTED] T2705.074
[GRAPHIC] [TIFF OMITTED] T2705.075
[GRAPHIC] [TIFF OMITTED] T2705.076
[GRAPHIC] [TIFF OMITTED] T2705.077
[GRAPHIC] [TIFF OMITTED] T2705.078
[GRAPHIC] [TIFF OMITTED] T2705.079
[GRAPHIC] [TIFF OMITTED] T2705.080
[GRAPHIC] [TIFF OMITTED] T2705.081
[GRAPHIC] [TIFF OMITTED] T2705.082
[GRAPHIC] [TIFF OMITTED] T2705.083
[GRAPHIC] [TIFF OMITTED] T2705.084
[GRAPHIC] [TIFF OMITTED] T2705.085
[GRAPHIC] [TIFF OMITTED] T2705.086
[GRAPHIC] [TIFF OMITTED] T2705.087
[GRAPHIC] [TIFF OMITTED] T2705.088
[GRAPHIC] [TIFF OMITTED] T2705.089
[GRAPHIC] [TIFF OMITTED] T2705.090
[GRAPHIC] [TIFF OMITTED] T2705.091
Mr. Platts. Thank you, Ms. Koontz.
Before we go to questions, I know, Mr. Weinstein, you need
to return to the Archives. Again, I appreciate your being here
for your opening statement and those of the other witnesses on
the panel.
Mr. Weinstein. Thank you, Mr. Chairman. Again, my apologies
to the members of the subcommittee. But the NHPRC is a very
valued component of NARA and they are having their semi-annual
meeting today to decide on grants.
Mr. Platts. Well, we will save all the tough questions for
Dr. Kurtz in your absence.
Mr. Weinstein. That is a good idea. He can answer them, Mr.
Chairman.
Mr. Platts. Thank you. We will proceed to questions and we
will begin with roughly our 5-minute round for each member. I
will begin.
Again, I appreciate all the testimonies and the effort that
each of you put in day in and day out trying to promote
openness in our Government. One of the issues I guess I would
like to start with is the timeliness and the challenge we have
and some of the examples of the months, if not years, and some
perhaps justified because of the complexity and the volume of
information until we go through and really, from a national
security perspective.
I would like to start with the first premise of what
incentives under current FOIA legislation, what incentives do
agencies have to comply with the time requirements in the law
as it stands today. I would open that up to all three of you.
Mr. Nichols. I'm happy to answer that question. First of
all, FOIA is obviously a Federal statute. My view is that
agencies have a duty to comply with Federal statutes. That in
and of itself is an incentive.
In addition, the Department of Justice, through its Office
of Information and Privacy, provides guidance and encouragement
to agencies to both comply with FOIA in an appropriate way and
also to be timely in the way that they do so.
Finally, I think that it doesn't happen often or not
incredibly often, but litigation, if requests are not processed
timely, is a threat. Agencies know that if they do not respond
in a timely manner they may be sued and will have to defend
their position in court.
Mr. Kurtz. I think I would also add, Mr. Chairman, let me
emphasize what the Archivist said, that it is our mission to
make records available and so the purposes of the Freedom of
Information Act are very compatible with NARA's mission. We
have a very trained and effective FOIA staff that works on
these issues. So, it is very compatible.
We have about a 75 percent response rate within 20 days,
but as we talk through the questions this afternoon, I think
the serious issues involved with the remainder will come to the
fore.
Mr. Platts. Ms. Koontz.
Ms. Koontz. I would agree with what the other witnesses
have said. I would just add that FOIA does require agencies to
report publicly on processing times for providing FOIA
requests. I think this is an incentive as well to have their
times look as favorable as possible.
In addition, just as Mr. Nichols said, they wish to avoid
conflicts with requesters and unnecessary appeals.
Mr. Platts. Dr. Kurtz.
Mr. Kurtz. I would like to add one other thing. In talking
about incentives, part of our implementation of the Government
Performance and Results Act is we have set up standards and
measurements for responsiveness to FOIA. That is part of our
agency measurement system.
Mr. Platts. There seems to be lots of information about
timeliness and how well an agency or department is doing. I
would agree in some instances the threat of a lawsuit,
especially if it is a well-resourced applicant for the
information, that is an additional legitimate threat.
But I guess my concern is what consequences are there for
non-compliance? It is a question I have asked at a lot of
hearings this past 2 years as chairman of the subcommittee. In
the private sector there are more readily consequences for not
doing one's job. Usually you lose your job.
A week ago I sat here and asked what happened when one of
our departments spent $170 million on a program that now is
found to not be able to do what it is supposed to do and we are
starting over. My question was, was anyone let go? Has there
been any effort to recoup that money? Unfortunately, the answer
as best known was no; thus far none of that has occurred.
I guess that goes to my question here. We look at the
timeliness, but are there any consequences? Are any of you
aware of anyone being demoted who is responsible for FOIA in
any agency or any department for non-timely compliance with
FOIA requests?
Mr. Nichols. Not sitting here, I am not aware, but I would
be happy to look into that.
Mr. Platts. Actually, if you would identify and if there is
any information that relates to staff where in instances they
have been demoted because of failure to comply, we would like
that information provided to the subcommittee.
Ms. Koontz or Dr. Kurtz, are you aware of any instances of
there being actually consequences for non-compliance other than
through the legal system?
Ms. Koontz. I am not aware of any situations like that, but
I have to say we haven't been asked to study that particular
issue either.
Mr. Kurtz. I am not aware of any.
Mr. Platts. I certainly have more questions, but I am about
to run out of time. Maybe one last question on that same topic
and then I am going to yield to Mr. Waxman. We are going in the
proper order now. Is relating to just that responsibility for
oversight, Mr. Nichols, is that most directly with you in your
understanding the law with Justice for overseeing within the
executive branch, timeliness and general compliance, fulfilling
the requirements of the law of all the various departments and
agencies?
Mr. Nichols. Within the executive branch the Department of
Justice has primary responsibility for overseeing agency
compliance with FOIA. OMB does have a piece of that oversight,
but Department of Justice does have the primary responsibility,
yes.
Mr. Platts. With that responsibility, are you aware of any
instances where in identifying failures to comply that there
were recommended actions submitted by DOJ to a specific agency
or department recommending that the secretary or director of a
certain department or agency take remedial actions or
administrative actions regarding the personnel involved for
failure to comply?
Mr. Nichols. I am not aware of any such steps. I don't know
that doesn't mean it hasn't happened. I am just not aware.
Mr. Platts. If you do become aware of information again, if
you could submit it to the committee after the fact, we will
keep this record open for several weeks after the hearing.
I am going to yield to the ranking member of the full
committee, Mr. Waxman of California.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Nichols, I would like to ask you about the
proliferation of new categories of restricted information and
the use of information designation such as for official use
only to prevent public access to non-classified documents. In
your written testimony you noted that labels such as for
official use only should not be confused with withholding
information that is exempt from disclosure under the Freedom of
Information Act.
You have conceded however, that nevertheless they often
are. I am concerned that these labels are not clearly defined.
They are applied inconsistently across agencies and even within
agencies and they don't have statutory authority in many cases.
Some administration officials have acknowledged this
obvious point. For example, I have a May 9th letter from the
head of Intelligence and Security at the Department of
Transportation on this issue. This official, Christopher
McMann, acknowledged that his department ``did not keep records
of restricted information designations other than national
security classifications.'' He also stated ``There is no
regulatory or other national policy governing the use of the
for official use only designation.''
Do you agree with his characterization that there is
currently no regulatory or national policy governing the for
official use only designation?
Mr. Nichols. I am not sure about the answer to that. What I
do know is that answer does not determine whether, when a
request is made under FOIA, that information will be withheld
or not because when you have a FOIA request you have to do the
typical exemption analysis, and that may or may not mean that
the information will be withheld in a particular circumstance.
Mr. Waxman. That has more to do with the information itself
and not the designation for official use only, doesn't it?
Mr. Nichols. I am not exactly sure I understand your
question.
Mr. Waxman. Well, if somebody puts on there ``for official
use only,'' does that bestow FOIA exemption?
Mr. Nichols. May I confer with my colleagues for a second?
Mr. Waxman. Please.
Mr. Nichols. Absolutely not. That does not bestow a FOIA
exemption.
Mr. Waxman. Do you also agree that in many instances there
is no statutory basis for using the ``for official use only''
designation? Is there a statutory basis for using that
designation?
Mr. Nichols. With respect to FOIA or generally speaking?
Mr. Waxman. Certainly with respect to FOIA and then----
Mr. Nichols. Well, as I said before, that designation, to
the extent it occurs, is not FOIA-determinative with respect to
a request.
Mr. Waxman. OK. Now, my staff has been collecting examples
of bizarre uses of the ``for official use only.'' For example,
according to the publication Government Executive the
Department of Defense phonebook is now labeled ``for official
use only.'' In another example, last December the Department of
Health and Human Services issued a new information security
program policy. It was labeled ``for official use only.''
Directly below this stamp, on the cover page however, the
report said the following disclosure is not expected to cause
serious harm to HHS.
Let me ask you, if HHS actually made a determination and
stated on the cover of its document that disclosure would not
cause harm, why would they then restrict it by labeling it for
official use only?
Mr. Nichols. I am not sure why HHS made that determination.
But again, with respect to FOIA and whether this information,
so designated, would be producible to someone who made a FOIA
request, I stand on my previous answer that ``for official use
only'' will not be determinative of the outcome of such a FOIA
request.
Mr. Waxman. Would you support efforts by Congress to help
agencies come to a more sensible and consistent application of
these labels?
Mr. Nichols. The labels for official use only?
Mr. Waxman. That or any other label that they want to make
up that there is no statutory basis for in law.
Mr. Nichols. I hate to sit here and speculate, Mr. Waxman.
But I think as a general proposition it is best to have a
relatively consistent application of terms across the
Government.
Mr. Waxman. Thank you very much. I yield back my time, Mr.
Chairman.
Mr. Platts. I now yield to Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman.
Ms. Koontz, how successful have agencies been in utilizing
information technology for more efficient dissemination of
Government records and files to the general public? Are
requests being completed more efficiently?
Ms. Koontz. That is an area that we haven't studied
specifically, but we have had a lot of conversations with
agency officials over the years. I think one of the biggest
challenges that they have consistently cited, along with the
notion of having not enough staff to do some of these
responsibilities, it is also the lack of information and
technology support that they think could help them process FOIA
requests more efficiently.
We have also heard from other agencies who have implemented
electronic records management systems and they report to us
that these have helped them make gains in the area. This is not
something we have been able to verify, but I think there is
some indication that some places have had some success with
this.
Mr. Towns. But most of the time it is a lack of staff, you
say?
Ms. Koontz. That is often what they have told us, it is
often a lack of resources such as staff and such as information
technology. I mean there are other factors, too, that play into
their ability to process in a timely manner which would include
variations in terms of the type of complexity of requests that
they receive, whether it is sensitive information that requires
line by line review and redaction. There are a number of
variables here that affect efficiency.
Mr. Kurtz. One thing I would note, Mr. Towns, we have
developed two automated systems for redaction and tracking that
have really greatly assisted us in performing our FOIA reviews
at the National Archives. So, we went from a purely manual
system to an automated system. It has been extremely helpful.
Mr. Towns. When did this take place?
Mr. Kurtz. I think we developed this about 2 years ago. We
gave a demonstration of it to the subcommittee staff in the
last week or so. We would be glad to make information about it
available to any interested agency.
Mr. Towns. Ms. Koontz, are the wholesale or incremental
changes that could be implemented to reduce the number of
backlogs of FOIA cases throughout the agency community are they
wholesale or incremental? What would you say? How would you
describe it?
Ms. Koontz. To reduce the backlog specifically?
Mr. Towns. The backlog.
Ms. Koontz. I think as with most things it is a combination
of probably some wholesale sort of changes as well as some
incremental changes that need to be done to reduce to perhaps
increase staffing, if that is something if we can allocate more
staff to FOIA. But also to increase information technology,
more of a wholesale change, I would say.
Mr. Towns. Thank you.
Mr. Nichols, there are concerns that agencies are not being
compliant with the provisions of FOIA relating to response time
and fulfilling requests from many news organizations. Can you
offer us some specific examples of what the Department of
Justice has done to enforce agency compliance with FOIA?
Has the DOJ FOIA office been active in forcing agencies to
be in compliance with their FOIA activities?
Mr. Nichols. I want to make clear that our oversight
responsibility as we discussed earlier and I think is in my
testimony is that we are responsible for encouraging agencies
to comply with FOIA in a timely and consistent manner.
Mr. Towns. How do you do that?
Mr. Nichols. We post guidances. We have a full-time staff
that consults regularly with FOIA. Several members of that
staff are here today, the Office of Information and Privacy
[OIP]. They have a very robust Web page that gives agencies
guidance on both substantive and procedural aspects of the act
to encourage their compliance with the act.
Mr. Towns. But there's nothing you can do, though, if they
do not comply?
Mr. Nichols. I'm not sure what you mean by nothing we can
do.
Mr. Towns. What can you do then? Maybe that is a better way
to put it.
Mr. Nichols. Well, I think, like I said, we encourage their
compliance.
Mr. Towns. Encourage? What do you mean when you say
encourage? Could you be a little more specific? Sometimes I
encourage the chairman on some things.
Mr. Nichols. I think, a, we make sure they understand their
obligations under the Act; b, we talk to them about their
obligations under the act; and c, we publish this guide that
tells them what they are supposed to do.
This is not a small book, obviously. This lays out their
various obligations. We try to make sure they understand as
best they can what they are supposed to do. I think those are
important substantial efforts that we undertake and we devote a
substantial number of people, time and effort to attempting or
pushing agencies to comply with their obligations.
Mr. Towns. Thank you, Mr. Chairman. My time has expired.
Mr. Platts. Thank you, Mr. Towns. Mrs. Maloney.
Mrs. Maloney. Thank you.
Mr. Nichols, you testified earlier that if someone did not
respond or if the agency did not respond, then they could go
into court. I would like to ask my questions and my questions
come from constituents, individuals, not big news organizations
and so forth or research organizations, but individuals who may
have a conflict with Government. There's a fine that came in
from Government. They are questioning where it came from. The
EPA is trying to take their land from them. They have condemned
or called it wetlands or different interactions with the
Government.
One of them was a whistle blower that was fired and then
tried to look back at why this firing took place. In many of
these cases they tell me that the Government never responds.
I'm not talking about areas that are sensitive such as maybe
Department of Justice or CIA or Homeland Security. I am talking
about general agencies that are there to serve the public
without any form--or should not, in my opinion--have any form
of confidential information or whatever. It is not Homeland
Security or has national interests involved. Yet they say they
can't get a response.
I think to give the answer that people can go into court is
not an appropriate answer. Most people can't afford to go into
court. But they are certainly entitled to have the laws of this
country upheld.
I would appeal to my colleagues that I think this law has
to be changed. To say that you have to reply within 10 days--
and I hear from some constituents it is 1, 2, 3, 4 or never
years. Then we have to come up with a reasonable timeframe,
maybe a year, maybe 6 months. But then fine the agency or do
something to make the agency respond. I think the answer, oh,
go into court and sue the Government, is just not an
appropriate response for responsibility of Government.
I would like to get back to the use of terms. As Mr. Waxman
was pointing out, when they say official use or they just
redact reams of paper, say a decision from the EPA or the
Commerce Department where they will redact in a individual
dispute with a constituent three-fourths of the paper. So all
you are looking at is black. I can't imagine that the
exemptions would apply to that.
Now, if my constituent comes to me and says I don't think
this should have been redacted, what course of action do they
have or can I take on their behalf? Do I appeal back to the
agency and say, please reconsider the redactions? Do I go to
the Department of Justice? Is there someone looking to see if
there is really a legitimate reason for the redaction or maybe
just a Government official doesn't want anybody to look at the
mistakes they made or stupid things that they did. I mean we
all make mistakes.
But I think one of the strengths of our Government is that
we look at our mistakes, come up with better answers and go
forward. That is very troubling for me. It has come to me from
about seven different constituents that when they even got
their FOIA request, which is usually 1, 2, 3, 4 years later,
that three-fourths of it is redacted. Who do you appeal to
question why it was redacted?
Mr. Nichols. Well, if I can answer in two ways, first, with
respect to any particular redaction it is almost impossible for
me sitting here to know whether it was appropriate. In a
whistle blower example, there may have been law enforcement
interests.
Mrs. Maloney. Let's stay away from the whistle blower.
Let's stay with an individual dispute with an individual and
the Department of Commerce or EPA.
Mr. Nichols. Sure, but it depends on what the dispute is
about. It may implicate law enforcement concerns. It could
implicate Privacy Act concerns with respect to other
individuals.
Mrs. Maloney. But my question is, who do I appeal to for my
constituents. Who does my constituent appeal to when they
believe the redaction is unfair?
Mr. Nichols. There is a mechanism for appealing within
FOIA.
Mrs. Maloney. What is it? What is the mechanism? I want to
go back and tell my constituents how they can appeal the FOIA.
What do I tell them? What is the mechanism?
Mr. Nichols. I am sorry. I just wanted to confirm that my
understanding is absolutely correct. Your constituent could
take an administrative appeal within the agency to challenge
the determination either with respect to a denial of the
request or withholding information or----
Mrs. Maloney. They can do an administrative appeal to the
agency that redacted it?
Mr. Nichols. Yes.
Mrs. Maloney. Saying, explain to me why was it redacted.
Mr. Nichols. Yes.
Mrs. Maloney. And they can do an administrative appeal now
if, say, it has taken 2, 3 or 4 years? Please explain to me why
it has taken so long.
Mr. Nichols. I am sure there are time limits, though I
don't know them right now.
Mrs. Maloney. They are 10 days. The law says 10 days.
Mr. Nichols. No. What I mean is once they have received the
information and they think that it is improperly redacted, to
challenge that redaction.
Mrs. Maloney. OK. So they have to challenge it within 60
days, I think it is. Then, once they challenge it, what is the
timeframe to get back to them?
Mr. Nichols. They have to respond to appeals within 20
working days.
Mrs. Maloney. But you see, what has happened with this
law--and I know my time has expired--the law is not being
enforced in any way, shape or form. We heard from the numbers
from the chairman, I believe, that showed that the 10-day
waiting period, and even in your own testimony, is practically
never met. The 20-day response to the retractions is
practically never met.
Right now we don't have any enforcement tool back on the
agencies. They can basically just ignore and go forward. As Mr.
Nichols said, the recourse that a constituent has is to go into
court. I feel that should be a last course of action. I don't
think the law is working right if the average citizen in our
country can't get their answer and the answer is they have to
go to court to get their response.
Mr. Nichols. Could I respond to that?
Mrs. Maloney. Yes, please do.
Mr. Nichols. I just simply don't think it is true that the
average citizen can't get a response. We have 4 million
requests a year, 4 million requests. That is a substantial
increase even over last year. It is almost 30 percent, as the
GAO testimony indicates.
At the same time, the backlog, which is requests pending
for over a year or across years, is only 160,000 requests,
which is a 14 or 15 percent increase over last year. So, we
have actually had a substantial increase in requests and not
nearly the same increase in backlog. The number of 140,000 or
160,000 requests that are backlogged as a percentage of the
total number of requests is substantially less than 5 percent.
Mrs. Maloney. As one of my constituents said to me,
administrative appeal never works. You are going against the
Government. The Government always wins. So, I would like to
know how often are administrative appeals successful and how
often do the redactions change in favor of the citizen? Do you
have any data on that?
Mr. Nichols. No data. I think it varies by agency.
Mrs. Maloney. And what if the citizen disagrees with the
administrative appeal decision? What recourse is there?
Mr. Nichols. Well, they can, of course, always go to court.
Mrs. Maloney. It is going to court. OK, maybe that is
something we could as a committee request, a GAO report on how
often are the administrative appeals successful and how often
do the redactions change in favor of the citizen. I think that
is a legitimate question to ask and I think it is one that we
should do in a bipartisan way.
Also, the timeframe, maybe I am unusual, but I hear reports
from my constituents that they wait 1, 2, 3, 4 years to ever
get a response.
Mr. Platts. Mrs. Maloney, we are going to come back around
for another round and maybe several rounds as the time allows.
But I think it is a legitimate question. I would like, Mr.
Nichols, if the Department of Justice could submit to the
committee any data that you do have, maybe not with you today,
but that the department has that relates to either specifically
to Department of Justice or other agencies on administrative
appeals, how many were made in the last, say, 2 years and how
many were successful in any form?
If you have it for other departments or agencies, we would
like you to submit that as well, but if you have, even just for
the Department of Justice, that would be very helpful and give
us an example.
Mrs. Maloney. I think maybe a GAO report would be in order.
Mr. Platts. Well, that is something we can look at.
Mrs. Maloney. We could look at it. I will tell you, I think
this is one of the most important bills that ever passed
Congress. It is one of the things that makes our democracy
great. I come from a city that gets criticized all the way, all
the time, by the whole Nation. I sometimes think it makes us
stronger when we look at what we have done wrong and we get
stronger from it.
But I am getting a lot of complaints from my constituents
and maybe I am just overreacting, but when people yell at me,
then I get a little testy. They are saying no one listens to
them and the administrative appeals are cooked. So, I don't
know.
Mr. Platts. Mrs. Maloney, that is the reason we are here
today, is to explore the good and bad of FOIA and what the
weaknesses are, what the strengths are and that is the reason
for this panel and our second panel of requesters, is to
explore what improvements over the last 39 years have been
identified and even the last 9 years since the 1996 act, which
I know you played a critical role in and I commend you on that
effort. But that is the purpose of this hearing, is to explore
that.
If you could provide that information and my guess is you
will have it perhaps just for your department, which we will
welcome and then we will look at the possibility with the
ranking member of a GAO request to go beyond that.
Mrs. Maloney. Thank you. Thank you, Mr. Chairman.
Mr. Platts. I would like to continue on one of the
challenges. Mr. Nichols, I appreciate, one, you pointed out
that we want to keep it in perspective that we certainly have
room for improvement. But when we look at numbers and we look
at that 71 percent increase from 2002 to 2004 of requests for
information and then we talk about 140,000, up to 160,000 now
in 2004 of carryover, unfulfilled.
Your point about percentages, if we extrapolated from where
we were in 2002, a 71 percent increase in requests to the
140,000 in carried-over cases in 2002, we would have had about
100,000 more cases carried over, not just 20,000. So in those
numbers there is actually some good news in the sense that a
smaller percentage of that huge increase is now carried over
and that is good news.
Ideally, we get to where an even smaller percentage is
carried over. There are certainly going to be some of these
very complex cases of national security that we know will carry
on longer than we would otherwise hope.
But let me get to one of the things you talked about in
your testimony, which is staffing. The demands that we are
placing and using Justice and FBI in the post-September 11th
environment, we know there is a tremendous redirection and a
needed redirection of resources. Does that account for it? My
understanding is that prior to 2001 FBI had 600 roughly
personnel doing FOIA in the Department of Justice and we are
down then to 400. We actually reduced it by about a third.
Is that, first, accurate? Are you aware if those numbers
are roughly accurate in the numbers at Justice?
Mr. Nichols. If I could check and see if we know.
Mr. Platts. Sure.
Mr. Nichols. That is roughly correct.
Mr. Platts. As we are seeing an increase we actually see a
reduction in staff internally and now I am going to assume that
is because of enhanced demands on the department. But in
getting to the issue of staffing, are you aware of any requests
by Justice submitted to OMB when the annual budgets are put in
place for returning to that 600 level?
In other words, in 2004 where we have just had the 2006
budget submitted a few months back and the 2005 budget and the
2004 budget, have there been requests for additional FOIA staff
to deal with this huge volume?
Four million requests a year, 71 percent increase
Government-wide is huge and a lot of that being Justice--
prisoners, I know in particular, are you requesting more staff
to try to keep up?
Mr. Nichols. Again, if I may consult.
Mr. Platts. Sure.
Mr. Nichols. Two answers. One, I am not aware, we don't
know. I would have a hard time talking about internal
deliberative processes anyway. But again, I am not aware.
Mr. Platts. But I would like if you could followup again
for the record. If the public information as far as what was
submitted to OMB, the budget request, and I was going to make a
joke. I hope I don't have to make a FOIA request for that
information.
Mr. Nichols. We would process it timely. We will make the
20-day deadline.
Mr. Platts. I think that is a legitimate question. We have
seen your demand go up tremendously. It is a legitimate
statement to say from a staffing standpoint we are swamped and
rightfully you have huge priorities.
But I do agree that one of the foundations of our democracy
is openness. One of the ways we defeat the terrorists is by
remaining an open Government and not allow them to achieve what
they are after, which is to change our way of doing business,
as a Government and as a Nation. So, you are checking. Maybe we
can look at the 2004, 2005 and 2006 budgets, what specific
requests for additional FOIA staff have been submitted to OMB
and perhaps ultimately by OMB to Congress. I am not aware of
any, but I appreciate that.
On the issue of staffing, and this really goes to Dr.
Kurtz, you and Mr. Nichols, how do you ensure on the staff you
have a consistent uniform application of discretion, when
deciding what should be released and is appropriate and what is
not? What goes into that training and that process?
Mr. Kurtz. We have a special designated staff that works
with FOIA both here and the National Archives in Washington and
in the Presidential libraries that fall under FOIA and the
Presidential Records Act.
So, there is intensive training, both in the area of FOIA
exemptions and also areas of declassification, other statutes
that apply such as atomic energy statutes. So there is
continual and constant training and the staff works on all of
these sensitive areas including FOIA.
Mr. Platts. But that training is internal, correct?
Mr. Kurtz. Partially.
Mr. Platts. Is some of it with Justice?
Mr. Kurtz. Some of it is provided by the Justice
Department. A lot of it is provided by other agencies. For
instance, the Department of Energy has a very extensive program
for reviewers.
Mr. Platts. And that really goes to--I guess I am looking
for uniformity not just within your own agency, but across the
Federal Government. How do we ensure that there is equal or
uniform discretion?
Mr. Kurtz. It would seem to me that agencies that have a
lead, for instance that is why I mentioned the Department of
Energy for atomic energy information, they are the experts and
so they provide training Government-wide. Perhaps that is a
model that could be considered for other areas in competence.
Mr. Platts. Mr. Nichols.
Mr. Nichols. I agree with that. I also add what I have said
about our Office of Information and Privacy which provides
substantial guidance, both substantive and procedural to all
agencies. It has a great Web site and publishes this book,
which does a lot of things to ensure consistent application of
FOIA.
Mr. Platts. I am not aware currently of this being the
case. Is there any discussion at Justice or in the various
agencies--you identified some instances of spikes in FOIA
requests and that small agencies can get inundated, a large
agency could get inundated because of an issue popping up--of
having a Government-wide FOIA team that is easily moved? Does
that happen today? Are there FOIA staff that, Justice gets hard
hit and you borrow from the Archives or is there any sharing of
FOIA staff currently and is there any discussion of more of a
Government-wide team being put in place?
Mr. Nichols. I think it happens on a fairly small scale, a
case-by-case basis. There is not, as I understand it, a
dedicated task force that might move agency to agency or case
to case. It is more ad hoc.
Mr. Platts. Because they relate to me, they say if we want
uniform application of FOIA so we try to have uniform training,
that there would be an opportunity for that so that as there
are spikes from agency to agency we would not have to add
permanent staff, but maybe shift people.
My only hesitancy, and I am interested in the opinions of
all three of you if this is something you think would be a
concern, that while you can get uniform training, having
insights into specific knowledge of your agency's information
is a critical aspect of the decision that you make. Is that
perhaps a big hurdle from that kind of team that would move
from agency to agency?
Ms. Koontz. I think that is a fair characterization that in
some cases that certain agencies may require staff who have
expert knowledge of those particular operations and of that
particular information in order to make the right kind of
decisions about disclosure. But that would not be uniform
across the Government. It would be in particular cases, so I
think it is an idea that might otherwise have some merit for
particular situations.
Mr. Platts. More likely where there is intelligence
sensitivities?
Ms. Koontz. Yes.
Mr. Platts. Some of the agencies on a more regular basis
are going to have those type of sensitive decisions?
Ms. Koontz. And often an agency like CIA might cite that
one of the difficulties they have is being able to hire trained
staff who can go through this very sensitive information and
review and redact it. It is not something that anybody can do
and that is why they often call on retired personnel and get
them back to do that sort of thing.
But we are not dealing with a monolith here. There are many
different kinds of requests and we have to take them into
consideration.
Mr. Kurtz. Just to followup on Ms. Koontz' comment, the
State Department, for instance, has a very active program of
bringing back retired Foreign Service officers to work in
declassification and access issues because of their expertise
and their knowledge.
Mr. Platts. OK. I am going to yield to Mr. Towns.
Mr. Towns. Thank you very much, Mr. Chairman.
Ms. Koontz, I know you have had a lot of work in this area
and you have been able to talk to a lot of people. I ask this
question because something strikes me real funny here. I think
that as Members of the Congress, I think this is going to be
something that we will probably want to ask more questions
about.
The fact that nobody has ever been fired for not--that, to
me, strikes me as very funny. What is the general consensus in
terms of talking to staff out there? Do they feel that
complying is important or do they just feel that if I comply,
fine; if I don't, so what?
Ms. Koontz. We certainly have not talked to everybody, but
I have to say that the FOIA staff that we have talked to over
the years are very dedicated. They are very, very interested in
trying to meet the needs of requesters. I haven't seen any kind
of attitude that would indicate to me that people don't care
about what they are trying to do here.
But sometimes they do suffer from maybe a lack of attention
within the agency, a lack of resources. In some cases, too,
again, some of these requests are very difficult. They are very
broad and often searching agency records, searching records
across an agency is a very difficult task.
Mr. Towns. Let me ask this question then. While a person is
waiting for information, do they generally acknowledge the fact
that a request has been made?
Ms. Koontz. I believe there is an acknowledgment and also
we have been talking a lot about that 20-day requirement. The
20-day requirement is actually not a requirement to supply the
records, as I understand it. It is really a requirement to get
back to the requester and say are we going to comply with your
request or not.
So, that is a form also of getting back to the requester
and letting them know that yes, you are going to provide
responsive records or no, you don't have responsive records.
Mr. Towns. What would your reaction be if we decided to say
that a response must be answered within a year, one way or the
other? What would your reaction to that be?
Ms. Koontz. My reaction to it would be that I think it is
useful to have guidelines or requirements for when agencies are
supposed to provide things. However, I am a little concerned
that if you make it a year, while I am not sure that is any
more realistic than making it 20 days. It doesn't recognize the
variations.
I think that whatever timeframe we come up with has to
recognize the reality that there are huge variations in the
type, number and FOIA request that agencies get.
Mr. Towns. Mr. Nichols.
Mr. Nichols. First, the administration, I don't know what
its official policy would be with respect to that if it were
proposed in the bill. But I think part of the consideration
would have to be, well what is the penalty for failure to
comply? I don't know what you are suggesting would be the
consequence of that. That would obviously be relevant to the
consideration of whether and to what extent that would be a
good idea.
Mr. Towns. Excellent question. Maybe we would have to
reduce your budget.
Mr. Kurtz. You could send it to the Archives.
Mr. Towns. Mr. Kurtz.
Mr. Kurtz. We have been discussing this very issue amongst
ourselves at NARA about what might be various strategies to
pursue. Picking up also on what Ms. Koontz said, our difficulty
really is coping with very complex cases. We get almost all of
the so-called simple ones out within the 20 days.
So we do a couple of things. One, we do communicate with
each researcher if it is going to take more than 20 days. But
more than that, we try to engage them in a communication and
dialog with us so we can try to focus the request, get some
idea of their priorities so that we can move through it in a
certain way.
I know there are several bills that have been proposed and
one that proposes to establish a commission to look at the
issues of why FOIA is so difficult to implement. One of the
areas that a commission could look at is various categories of
problems and are there different timeframes and so forth for
different kinds of requests involving different kinds of
records.
There are law enforcement issues. There are national
security issues. Each of those have their own complexities.
Perhaps a commission could consider, instead of one sweeping
sort of deadline, try to have some sense of categorization and
stratification.
Mr. Towns. The reason I raised this issue is because as
Members of Congress, and I think Congresswoman Maloney
addressed it, how we bump into constituents who say, well, I
have made a request and I haven't heard a word. So, I am
wondering in terms of if there was a sort of time limit on it
that it would sort of be helpful.
But anyway the 20 days, I think that helps some if it is
actually being complied with. Ms. Koontz, did you see that it
was actually being complied with?
Ms. Koontz. That is an interesting question because
although there is a 20-day requirement, we looked at the annual
reports that agencies give to the Attorney General. That
particular metric is not reported on. So, it is not possible
for us to say from the data that are in the annual reports to
what extent they are being complied with.
Mr. Towns. My time has expired, but I actually have one
more question.
Mr. Platts. Sure, Mr. Towns.
Mr. Towns. OK, fine. This is to you, Dr. Kurtz. According
to a recent notice from the National Archives and Records
Administration in the Federal Register, your agency would be
discarding approximately 9.100 backup tapes of classified
records from the Clinton administration.
Some historians have expressed concern about this, saying
some data or information may be lost in the process. Can you
assure us that your efforts will not result in the loss of any
information or data?
Mr. Kurtz. Yes, I can. Those backup tapes are duplicates
and all of the information from the various systems have been
backed up. They have been preserved. There will be no loss of
information. That is what we intended to try to convey in our
Federal Register notice. As we get responses from the public
and concerns from historians, we will be talking with them and
explaining actually what we have done from a preservation point
of view and to try to clarify any confusion.
Mr. Towns. Thank you very much.
Mr. Platts. Thank you, Mr. Towns. I understand that you are
saying they are duplicate backups.
Mr. Kurtz. Right.
Mr. Platts. We want to followup, Ms. Koontz. You said in
the annual report you review that metric is not there. That is
a decision of Justice and what you require in the reports? You
set the parameters or where are those parameters? Is that in
the statute, what they have to give you?
Mr. Nichols. Yes. What we ask for is what Congress has
provided for by statute and that is generally what the agencies
give us.
Mr. Platts. But you could request additional information as
the one responsible for oversight. There is nothing prohibiting
you from saying we want this specific metric in your annual
report so that we get to that issue of 20-day compliance.
Mr. Nichols. I think that is probably right. The reason I
say technically yes, it is always possible, but you would have
issues of comparing the specific framework that Congress set up
and the extent to which imposing additional requirements would
be consistent with that framework would have to be considered
closely.
That is why I say technically yes, I guess anything is
possible. But you would have to look at it closely.
Mr. Platts. I would encourage the Department to consider
and if legislation is to move forward here in the House and
Senate, that is something we would look at. On an
administrative standpoint, given that your responsibility is
oversight as an agency, one of the things you are looking at is
timeliness in that 20-day requirement metric is certainly one
that goes to the crux of timeliness, to identify, where there
may be a red flag going up that you more quickly hone in on a
possibly problem. So, I would encourage the department to give
weight to that or thought to that.
I want to turn to the issue of expedited review. Ms.
Koontz, what trends have you seen regarding the use of the
expedited review process in recent years?
Ms. Koontz. What we have seen since between 2002 and 2004
is that the number of expedited requests have dropped fairly
dramatically by about 75 percent. But this is mostly due to a
similar, very big drop at Veterans Administration in expedited
requests.
I can't explain further than that because all I have is the
data. I even talked to VA about what the reasons for that
change were.
Mr. Platts. That is what I was going to ask you as far as
the reasoning behind that we are not aware of.
Ms. Koontz. I am not aware of it, no.
Mr. Platts. OK. Thank you. One quick question yet and then
I want to get to Mr. Duncan. I apologize. I didn't see you come
in there on my left.
Mr. Duncan. That is all right.
Mr. Platts. On the expedited review, Mr. Nichols, have you
looked at compliance at all on that specific issue, where
agencies and departments, how they are responding to expedited
review requests in particular?
Mr. Nichols. I know that there are data on expedited review
processing. Beyond that, if I may check again, like the other
data that we have about the timeliness of responding to simple
and complex requests, we now as of 2 years ago include
expedited data with that other data. So, one can look at the
extent to which those requests are being complied with in the
timeliness sense in the same way as you can look at the other
information.
Mr. Platts. Is there any specific agency or department that
raises concerns about their compliance rate regarding expedited
requests?
Mr. Nichols. None has been brought to my attention for sure
and none that I am aware of with respect to expedited.
Mr. Platts. Thank you.
I now yield to Mr. Duncan from Tennessee for the purpose of
questions.
Mr. Duncan. Well, thank you, Mr. Chairman, and thank you
for calling a hearing on a very important subject. I am sorry
that I had meetings that prevented me from being here earlier.
I have two groups of constituents waiting for me in my office
right now.
But let me just make a couple of comments. I remember
several years ago Governor Rendell of Pennsylvania who, before
he was Governor, was Democratic National Chairman, he said at a
hearing several years ago, he said the problem with the Federal
Government is that there is no incentive for people to work
hard, so many do not. There is no incentive for people to save
money, so much of it is squandered.
That is so true. I thought of that when I heard Mr. Towns
express some amazement that nobody has been fired who had not
been doing a job on these things. One of the other problems
with the Federal Government is that too many employees know
that they would have to commit some horrendous criminal offense
to lose their jobs.
But I noticed in these statistics that 46 percent of these
requests are to the VA and I also notice that the VA has the
quickest average on handling these requests.
Then 36 percent of the requests are to the Social Security
Administration. What it looks like is that the departments that
are the slowest in handling these things are also the
departments that are getting the fewest requests.
Now, it is the easiest thing in the world to make a simple
thing complicated and that is what we do too often in the
Government. I think that based on what Mr. Rendell said, that
somebody should consider offering some of these departments
that are doing such slow jobs, offering some incentive to
employees who get these requests processed quicker.
They should also, in conjunction with that, penalize
employees in their salaries. You said something about cutting
the budget. Gee, we haven't cut a budget since I have been here
and I have been here 17 years. So, we are not going to do that.
But we should consider some types of incentives or something if
you really want to do something about this problem.
That is about all I have to say. I will have to leave, but
thank you, Mr. Chairman, for holding this hearing and for
calling on me.
Mr. Platts. You are welcome, Mr. Duncan. We appreciate your
being here. As we have discussed in previous hearings, the
consequence issue is something that we are going to stay after,
whether it be here with staffing.
Mr. Duncan. Well, I appreciate the work you are doing. You
are turning this into one of the more active subcommittees in
the Congress. We don't always have many people here, I
recognize that. But I do always try and show up, for a while
anyway.
Mr. Platts. We know the challenge of being in four places
at once is something that is always with us. Thank you.
We are going to run short on time. We may have some written
questions that we will submit to you and keep the record open
for those 2 weeks, depending on what we have covered here
today. I want to get just a couple more on the cost issue.
Mr. Nichols, you shared that roughly $300 million cost
Government-wide on a annual basis, which is significant. One of
the costs that I wanted to ask about that I wasn't sure, with
the Department of Justice is your litigation costs in the civil
side related to FOIA.
My understanding is from 2003 to 2004 it went from 30,000--
I guess several years in a row it was at 30,000 and then jumped
to 6.7 million in 2004. Is that just a real way of accounting
for your litigation costs or was there actually a new
expenditure of more than $6 million?
Mr. Nichols. No. I think my understanding is that we
started capturing the costs correctly or differently and so it
is not as if the litigation expenses increased 50-fold.
Mr. Platts. So, it might have been kind of apportioned to
something else as opposed specifically to FOIA-related
litigation?
Mr. Nichols. That is right.
Mr. Platts. OK. On the issue of costs, Mr. Nichols, you and
Dr. Kurtz, with your agencies, if you could wave a magic wand
what would be your first request or wish to help reduce the
costs you have related to FOIA and your ability to manage the
cost?
Mr. Kurtz. Well, I would put it this way: This might not
sound initially like reducing costs, but we need more staff to
train and to work and focus on the FOIA requests. I think over
time if we were able to do that we could tackle the more
complex issues that we have with other agencies related to
processing these requests and it would end up, I think,
ultimately driving down the costs of delay and it would also
provide a much enhanced public service.
Mr. Platts. Are you referencing specifically where you have
something that you have to go to another agency for their
approval because if it is a classified document only they can
declassify it?
Mr. Kurtz. Right. It takes a lot of time when you have very
large requests for thousands and thousands of pages of records
to review them, make the referrals to other agencies and that
sort of issue. So, the more qualified, trained staff that are
working on that the faster at least that part of the process
can go.
Mr. Platts. Mr. Nichols.
Mr. Nichols. It seems to me that a lot of the costs are
driven and in some respects are out of our hands. It depends on
what requests we get. If we get requests for extremely
sensitive information, classified information, law enforcement
related information, privacy protected information, that makes
our responses take longer, require more manpower to be devoted
to them.
So, some of it is out of our hands. I would echo what Dr.
Kurtz said generally. I think at the margins one can always
attempt to cut costs. Certainly if we got fewer requests costs
would go down.
Mr. Platts. It is not likely.
Mr. Nichols. Correct. We are always considering ways to
make ourselves more efficient. But from what I know I think a
lot of it is driven, as Dr. Kurtz said, by the nature, extent
and type of request that we get.
Mr. Platts. My hope and belief is that information
technology can go a long way to ultimately drive down costs.
Dr. Kurtz, I thought that is maybe what you were going to say,
more money and information technology. I know your agency has
made some great inroads as you referenced, that information
technology will allow us, as we digitize information, we up
front do a better job of classifying it, this is releasable
right away instead of an additional review.
My one caution as I say that is that we don't get to where
we see technology as this grand solution and start throwing
money at it because as I referenced earlier a week ago we had a
hearing that related to $170 million that was thrown at
technology all for naught because we are starting over.
Mr. Kurtz. I would say on information technology it
certainly has revolutionized the way we work internally. But
the issues of trying to work across agency lines on these
issues and trying to use information technology in sharing
information back and forth, particularly if you are talking
about classified information, is very complicated.
We are finding that out as we are developing our electronic
records archives which will have a classified component to it.
Mr. Platts. And security concerns related there to?
Mr. Kurtz. Yes.
Mr. Platts. For time, we are going to need to wrap up this
panel. I want to thank each of you and your staffs who are here
today, not just for your testimony, but for your service to
your fellow citizens day in and day out. We appreciate your
work and we look forward to continuing to work with you and
your agencies and staffs as we go forward in promoting as open
a Federal Government as possible.
We are going to take a 2-minute recess while we get the
second panel and we will reconvene shortly.
[Recess.]
Mr. Platts. The subcommittee will come to order.
Mr. Towns may get back with us. Mrs. Maloney, I understand,
as is typical on session days, has lots of conflicting
schedules.
We are delighted to have our second panel with us. Again,
we appreciate your written testimonies you have submitted and
the oral testimonies. What I would like to do, if I could ask
you to stand and be sworn in, as is the practice of the
subcommittee to have everyone sworn in, and take the oath and
then we will move right to your testimony.
I think we have you in the order we are going to go in.
[Witnesses sworn.]
Mr. Platts. Thank you. You may be seated. The clerk will
note that the witnesses affirmed the oath.
Again, if you could stick roughly to the 5-minute
timeframe, we are not going to be sticklers. Our hope is we
will have a good amount of time and get through your statements
and some good Q and A before any votes happen. The last thing I
want to have you do is sit even longer while we go over for
votes. Our belief is that we will be able to complete the
hearing before that happens.
Mr. Smith, we are going to start with you. I need to start
with, as a fellow newspaper person myself, of course I wasn't
writing or editing, I was delivering. It was not my first job,
but one of my early jobs was as a Sunday news carrier in York.
I never have been a real early morning person. I think I lasted
about 4\1/2\ years doing that paper route.
We appreciate your being with us. As one who delivered
papers for some of your colleagues in the industry, we are
delighted to have you here to start off this panel.
STATEMENTS OF JAY SMITH, CHAIRMAN, NEWSPAPER ASSOCIATION OF
AMERICA AND PRESIDENT, COX NEWSPAPERS, INC.; ARI SCHWARTZ,
ASSOCIATE DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY; AND
MARK TAPSCOTT, DIRECTOR, CENTER FOR MEDIA AND PUBLIC POLICY,
THE HERITAGE FOUNDATION
STATEMENT OF JAY SMITH
Mr. Smith. Thank you, sir. I would not be here if not for
people like you.
Chairman Platts, I am honored to appear before you today. I
testify as a citizen and as someone who has worked in the
newspaper business since he was 17 years old, and that is a
long time ago.
I also testify as president of Cox Newspapers, which is the
publisher of 17 daily and 25 non-daily newspapers. They are
part of Cox Enterprises, a company with cable, radio and
television properties and more than 77,000 employees. As its
chairman, I am also testifying on behalf of the Newspaper
Association of America, a trade association representing more
than 2,000 newspapers. NAA is also part of the Sunshine in
Government Initiative, which is a coalition of media groups
committed to open, accessible and accountable Government.
Please note that I listed citizen first. Citizens, not
journalists, submit most of the requests for information.
Businesses also make extensive use of the Freedom of
Information Act.
FOIA has provided a model for the rest of the world. Many
countries have followed our lead as they embrace democracy and
open their societies.
Created in 1966, the act has fostered public knowledge,
participation and a way of life that we hold dear and that is a
life of openness and honesty. Permit me please a couple of real
life examples on the significance of the act. The Associated
Press found researchers at the National Institutes of Health
were collecting royalties on drugs and devices tested on
patients who did not know about the agency's financial interest
in the products. That breached an NIH promise to Congress. The
practice ended under a reaffirmed policy announced when the
story hit the wire.
The Dayton Daily News, a Cox newspaper, reported on the
surprisingly large percentage of deaths of Peace Corps
volunteers overseas. Thanks to FOIA, several families learned
crucial details about the deaths of their loved ones. That
conflicted with what they had been told by Peace Corps
officials. The stories led to congressional hearings and
prompted the Peace Corps to improve policies on safety and
security for volunteers.
At its best FOIA builds credibility. Honest people get
honest answers from honest public servants. It is that pure,
that simple. But the system has flaws. Agencies do not have
strong incentives to act on requests in timely fashion or to
avoid costly litigation. Lack of accountability leads to lost
requests or an inability to track progress and unwarranted
denials of requests prevent important information from reaching
the public.
Consider this request now in litigation by our Cox
Newspapers Washington bureau. Federal law requires illegal
aliens convicted in our country of such crimes as rape, murder
and child molestation to be deported once they have served
their prison terms. Thousands of these aliens remain in the
United States because Federal immigration officials failed to
show up when the criminals were released from prison.
Despite numerous requests, the Justice Department will not
release information that could help journalists and the public
to know if aliens who should have been deported were instead
released back into their communities.
The subcommittee has asked for recommendations on how
Congress can improve FOIA. I would like to focus on three.
First, create a FOIA ombudsman to review compliance and to
identify public agencies plagued by excessive delays. The
ombudsman would also assist in resolving disputes as an
alternative to litigation.
Second, clarify that reasonable attorney fees can be
recovered by the requester when the pursuit of a claim was the
catalyst for agencies to release information. Too often the
Government refuses to provide documents, knowing full well that
the law is not on its side. Then, just prior to a court
decision, the agency produces the documents, effectively
mooting the case. There is no recourse for the requester, no
disincentive for the Government to avoid litigation.
Third, ensure compliance of Federal agencies with the
Electronic Freedom of Information Act of 1996 to increase
Government information provided on line, ever improving
technology maybe more to cut the knot that entangles public
information than any other tool at our disposal.
The benefits of these proposed remedies are not limited to
the media and to Government. They are about a common audience
the media and Government serve and serve well when they perform
at their best. And that, of course, is the American people.
Thank you for this opportunity. I look forward to your
questions.
[The prepared statement of Mr. Smith follows:]
[GRAPHIC] [TIFF OMITTED] T2705.092
[GRAPHIC] [TIFF OMITTED] T2705.093
[GRAPHIC] [TIFF OMITTED] T2705.094
[GRAPHIC] [TIFF OMITTED] T2705.095
[GRAPHIC] [TIFF OMITTED] T2705.096
[GRAPHIC] [TIFF OMITTED] T2705.097
[GRAPHIC] [TIFF OMITTED] T2705.098
[GRAPHIC] [TIFF OMITTED] T2705.099
Mr. Platts. Thank you, Mr. Smith.
Mr. Schwartz.
STATEMENT OF ARI SCHWARTZ
Mr. Schwartz. Chairman Platts, thank you for holding this
important hearing on the oversight of the Freedom of
Information Act and for giving the Center for Democracy and
Technology the chance to testify today.
CDT hopes that this hearing marks the beginning of the
subcommittee's interest in the important issues of public
access to Government information and the related issue of
Government information management.
As others here have eloquently said, the Freedom of
Information Act remains the most important tool for public
insights into the workings of Government, necessary to ensure
accountability.
While FOIA is the best tool and a model for openness around
the world, Congress has wisely decided to continuously monitor
the law's effectiveness and improve it over time to make sure
that it is still working as intended.
When it has been clear that the law is not working well,
Congress has amended FOIA directly or passed laws that work in
concert with FOIA to improve Government accountability and
access to Government information. Efforts to include provisions
that increase oversight and ensure that requests are answered
in a timely fashion are important. Yet, it is our contention
that the most important changes to FOIA are those that obviate
the need for FOIA requests at all.
Over the past decade Congress has made changes along these
lines. In 1996 the E-FOIA passed. Among other improvements it
required the availability of frequently requested information
and a list of information systems directly online.
In 2002 Congress passed the E-Government Act that requires
the creation of a Government-wide taxonomy for the first time.
If widely implemented, this will make searching for information
much more effective for both the agencies and Internet users.
Despite these improvements there have still been several
setbacks in the efforts to improve access to Government
information. Too often issues of cost, privacy and security are
unnecessarily seen as competing with openness. Most of the
discussion around these issues assumes that there must be a
tradeoff.
However, according to polling the public does not see it
this way, nor does CDT. In fact, CDT regularly hears stories
from agencies about the internal mismanagement of information
that implicates all of these areas. While cases such as the FBI
virtual case files have been highlighted in the press, similar
inefficiencies and failures exist throughout Government.
For example, one agency came to CDT to discuss changes in
its Privacy Act practices. These officials were cataloging the
Privacy Act systems of records at the agency to examine those
that could be combined or eliminated.
They found about half of these important data systems were
just missing. In this case, as in so many others, poor
information management doesn't serve any interests. However,
while bad information practices harm all of these areas, good
information management practices can protect them.
Information managers have long suggested solving data
access and control programs by tagging information within the
actual coding of the document. These tags describe the document
in part or in whole and would streamline searching the catalog
for information. It would also allow the creators of public
documents to tag privacy-sensitive information or classified
information, making decisions about releasing the document at
the time it is created other than other agency staff to review
the document when it is requested.
Documents suitable for release could then be posted as a
matter of course without the need for a FOIA request. Such
approaches also offer opportunities for cost savings. It takes
less time to digitize and make available all agency documents
with appropriate redactions and withholdings than it does to
file away the documents until FOIA request is received, search
for requested documents and then print and review and send the
documents it found.
Perhaps the best example of the power of posting
information comes not under FOIA but from a congressional
agency, the Government Accountability Office. GAO began
publicly posting all its reports on its own Web site in 1996.
By 1998, the total number of copies that GAO was printing had
decreased by one-third.
Meanwhile the average report was accessed more than 100,000
times online. Given the number of reports that GAO issues, this
means that in only 2 years tens of millions of more GAO reports
were being accessed without a significant rise in GAO's budget.
We believe that while the subcommittee looks to improve
FOIA implementation that it encourage models that stress good
information management. CDT is committed to working with the
committee as your efforts continue and we look forward to your
questions.
[The prepared statement of Mr. Schwartz follows:]
[GRAPHIC] [TIFF OMITTED] T2705.100
[GRAPHIC] [TIFF OMITTED] T2705.101
[GRAPHIC] [TIFF OMITTED] T2705.102
[GRAPHIC] [TIFF OMITTED] T2705.103
[GRAPHIC] [TIFF OMITTED] T2705.104
[GRAPHIC] [TIFF OMITTED] T2705.105
[GRAPHIC] [TIFF OMITTED] T2705.106
[GRAPHIC] [TIFF OMITTED] T2705.107
Mr. Platts. Thank you, Mr. Schwartz.
Mr. Tapscott.
STATEMENT OF MARK TAPSCOTT
Mr. Tapscott. Mr. Chairman, I commend you as well for
holding this hearing. I don't believe the Freedom of
Information Act gets nearly the public attention that it
deserves. I think that what you are doing here is one of the
most important things that this Congress will be doing this
year.
Mr. Platts. Thank you.
Mr. Tapscott. As I am sure you know, Secretary of Defense
Donald Rumsfeld is one of the original co-sponsors of the 1966
FOIA. He made an observation during the floor debate at that
time that I think has a direct relevance to what you are
discussing here today and the issues presented by how do we
make the FOIA work better.
Secretary Rumsfeld said ``There remains some opposition on
the part of a few Government administrators who resist any
change in the routine of Government. They are familiar with the
inadequacies of the present law and over the years have learned
how to take advantage of its vague phrases. Some possibly
believe they hold a vested interest in the machinery of their
agencies and bureaus and there is resentment of any attempt to
oversee their activities either by the public, the Congress or
appointed department heads.''
I think what he described as having happened in the years
leading up to passage in 1966 of the original FOIA is very much
what has happened in the years since it was passed. What we
have seen is, over time, Government employees, the vast
majority of whom who handle FOIA requests being career
employees, for whatever reason have learned the many ins and
outs and vague phrases within the law and the case law on the
administrative side to interpret the FOIA frankly for the
Government's advantage too often and too often to the
disadvantage of the requesters, particularly in my case the
news media.
I say this and I want to point out that when I cite career
Federal employees, I am a former Government employee myself, in
fact I was the fourth generation of my family to be in the
Government and I understand that career employees should have a
certain degree of insulation from political employees and their
pressures. That is a good thing to a certain extent.
One of the byproducts of that insulation is that it
encourages this very process that I am talking about of being
insulated from accountability for doing things like not
properly administering the FOIA.
I was frankly amused to hear Mr. Nichols from the Justice
Department during the previous panel citing as one of the so-
called incentives to Government employees to do the FOIA
administration properly being the threat of a lawsuit.
Speaking as a journalist who has often had opportunities to
consider is this important enough for us to file a lawsuit,
99.99 percent of the time the answer is it probably is, but we
can't afford it.
I think that this process should surprise no one because we
see the results in the increased delays, the increased backlog
and so forth. The National Security Archive did a survey in
2003 that I think indicates very accurately the problem and the
present condition. Their conclusion was simply that the system
is in extreme disarray. I believe that is a very accurate
characterization.
I was especially pleased, Mr. Chairman, when you focused in
on the absence of real penalties for not properly
administering. The fact is there are no penalties. There is, to
my knowledge, no Federal employee who has ever been disciplined
and certainly none that has ever been dismissed for failing to
properly administer the FOIA.
There are consequences, but usually it is because they
presented too much information, not enough.
I am also encouraged that you have cited that as one of the
main problems that needs to be addressed because I think that
is one of the big things that the Cornyn-Leahy bill addresses,
one of the most important things that it addresses and that is
providing genuine consequences, both to the individual employee
and to the agency.
I want to cite for you an example that I recently learned
about that I think illustrates these problems. Mr. Frank Flimko
is the editor of a small newsletter that covers the
Government's funding stream for youth programs. Last year he
asked for HHS information on Federal salaries of Head Start
directors. He was denied that because allegedly providing that
information would be a violation of personal violation.
Frankly, whoever wrote that denial didn't know the law
because that kind of information has been routinely provided.
But Mr. Flimko doesn't have a lawyer. He doesn't have the kind
of resources that are needed to challenge that kind of a
holding. That is the reality of what most newsmen and most
requesters face. Whatever the Government tells them is the last
word. That needs to be changed.
Thank you, sir.
[The prepared statement of Mr. Tapscott follows:]
[GRAPHIC] [TIFF OMITTED] T2705.108
[GRAPHIC] [TIFF OMITTED] T2705.109
[GRAPHIC] [TIFF OMITTED] T2705.110
[GRAPHIC] [TIFF OMITTED] T2705.111
[GRAPHIC] [TIFF OMITTED] T2705.112
[GRAPHIC] [TIFF OMITTED] T2705.113
[GRAPHIC] [TIFF OMITTED] T2705.114
Mr. Platts. Thank you, Mr. Tapscott. I share the sentiment,
that the threat of litigation being the most overriding
incentive to comply is not a very valid one because, as you
reference, even newspapers are always hesitant because of the
cost involved, to go that route.
I think for that individual citizen it is not an option and
we need to find a way to better fulfill the intent of Congress,
which is to have an open, accessible Government. When that is
not working, there should be consequences.
That is one of the frustrations in 2-plus years in this
chairmanship is that consequences is not something that is very
common in the Federal Government, for mis-expenditure of funds,
for non-compliance with FOIA, whatever it may be. I want to
touch on a number of issues.
My understanding is that our next series of votes is going
to begin between 4:15 and 4:30, which, assuming that is the
earliest, that means we have to be on the floor about 4:35 to
get in under the bell for that first vote. From what they are
telling us, it may be as many as six votes with a 10-minute
debate on recommittal in the middle, which means we do not want
to keep you waiting because you will be here a long, long time,
probably at least an hour and 15 minutes more.
So we are going to try to push through in the next 25 to 30
minutes and try to touch on various issues with Mrs. Maloney
and myself.
First, Mr. Smith, your emphasis, and I did take note of
your identifying yourself first as a citizen, which I think is
important for all of us to do. Some of us are in office, some
are in the private sector. Whatever our positions are, first we
are American citizens all seeking that same good outcomes for
our Nation and for all of our citizens. I think that is an
important perspective for us all to remind ourselves about as
we go forward on important issues like this.
I wanted to ask, on a specific issue and I did not get to
it with Justice while they were still here. The example of the
case with the immigration issue and the aliens being released,
that is an ongoing litigation case?
Mr. Smith. That is correct.
Mr. Platts. Because that is one that we may actually
incorporate into our followup questions to Justice, that
specific issue. My guess is because it is an active litigation
case they are going to respond that since it is in litigation
they can't respond. But it is one that just goes to the crux of
homeland security.
Here we have individuals of not the character we want out
on the street and we have them in our possession and we are
releasing them and apparently putting our citizens at risk and
yet we can't get the data to verify the accuracy of that. We
probably will make a followup on that and see what response we
get even though litigation is involved.
I do want to get into a couple of your specific
recommendations and the idea of an ombudsman. I think Mrs.
Maloney referenced earlier in her statements and others have
too of trying to have that type of one-stop shop where you can
go to as opposed to a litigation. So maybe you do the
administrative appeal and the same agency that denied you the
first time denies you again. Before going to litigation there
could be that ombudsman.
Do you have any structure and vision and how that would be
structured? The head of the agency, and I am going to reference
GAO as an example where there is a fixed term of 15 years for
the Comptroller General to try to de-politicize the position.
Do you have anything in mind along those lines or is it more
just the concept that we need to focus on, trying to establish
that concept?
Mr. Smith. In terms of structure, no. I like your use of
the word de-politicize. I think it is important that this be a
fair-minded representative of the requester as well as of the
agency. As I thought about this, you can almost draw a parallel
to the thing that so many of us know as telephone hell when you
get into the voice mail system and you are transferred from
this to that to another and how wonderful it is when there is a
living, human being who picks up the phone and says, may I help
you?
It doesn't happen too much any more. I think about that
concept brought to Government and applied in this way and
assuming that person, A, is knowledgeable, B, has the interests
of the citizen at heart and C, also understands that there may
be legitimate concerns of the agency. That is what I am talking
about.
Mr. Platts. Yes. I think we have a litigious enough society
that where we can try to have an effort that avoids the need
for litigation, I think it is something that is worthy of
exploration on how to structure it, how to have it facilitate
that cooperation in a way that is truly de-politicized and fair
to all sides. That is the challenge probably. But it is
something I want us to look at and see if there's a way to try
to incorporate it in some of the legislation that has been
proposed, some of the aspects that they have included.
One of the other things you highlighted was the attorneys
fees. Where you use the legal system inappropriately there are
in the Federal rules avenues to go after attorneys fees for
misuse, but that is a rarity. We should not allow Federal
officials to use the legal system for the purpose, in other
words, just to stall and delay.
That is something that as we look at legislation--let me
get to a couple of questions, because of the time limitations,
that maybe are broad. I am sure each of you could cite examples
that you are personally familiar with. In fact you have in some
of your testimony, examples of delay that were unreasonable and
inappropriate.
Where those delays happen, though, one of the questions, I
am not sure, is how informed the requester is kept of the delay
and the reasons for the delay. I would be interested if all
three of you would want to expand on your personal familiarity
that this agency is really good at saying, well, it is going to
be 6 weeks or 10 weeks and this is why. They keep you informed
and others that basically tell you nothing and you are just in
limbo unless you are after, and it is kind of a best case/worst
case scenario that you are familiar with would be helpful?
Mr. Smith, would you like to begin?
Mr. Smith. I can recall one very specific example that
occurred in Dayton, OH, when a reporter there filed, I believe,
over a 3-year period nine separate requests with the Department
of Health and Human Services. After one of those requests had
aged about a year he called and was told by the agency
representative ``Are you really sure you want to keep this
thing alive?''
The reporter said, ``Yes, absolutely, of course. Why
wouldn't I?'' And the agency representative said, ``Because
most people don't; they give up.'' That is, in my estimation
lousy service and a horrible way to respond.
Mr. Platts. Instead of facilitating a completion, you are
trying to discourage it from going forward at all.
Mr. Smith. Yes, sir.
Mr. Schwartz. I will actually followup on that. We don't
make too many requests at CDT. We hear about other requests. In
some examples, in cases where we have made requests, you have
to keep checking. You have two or three requests in at the same
time to different agencies, and you have to keep checking what
they told you and different time lines that they are coming
back, etc., making it extremely complex for someone that wants
to put in a request on one subject that goes to different
agencies.
That is one of the reasons we think that the online
tracking tools and some of the tracking pieces from the Open
Government Act make sense. It gets at the point that
Representative Maloney made earlier of where does this thing
stand 2 or 3 years down the line?
You can go back and take a look at it. That would have been
very helpful in the cases that we had. We were waiting for
substantial periods of time.
Mr. Platts. Mr. Tapscott.
Mr. Tapscott. Several years ago at the Heritage Foundation
we were asked by Scripps-Howard News Service to do a
statistical analysis of the effectiveness of the COPS Program,
which we did and published. Very soon after we published the
results of that study the Justice Department retained a couple
of academics to do a similar study. As soon as their names were
announced they asked us for our data which, within about 30
seconds of receiving their request we provided that data.
When we asked those two academics who were studying the
question on behalf of the Justice Department for their data,
they refused to provide it. This didn't prevent the Justice
Department from issuing a news release touting the results of
their study, but nobody could check the data upon which that
study was based.
We continued to ask for that data. We did finally receive
it, but only after one of your colleagues on another committee
put in a call to the Attorney General. Not everybody has access
to the Attorney General.
Mr. Platts. Right. Is there an agency that you would
identify as the best case that handles FOIAs in the most
efficient way, again based on your own experiences with this
process? If we have one we should look to try to model as doing
maybe not perfect, but better than others?
Do none jump out?
Mr. Tapscott. Not as models to emulate, no.
Mr. Platts. Maybe models not to emulate.
Mrs. Maloney, I don't know if you have questions.
Mrs. Maloney. I do. Thank you, Chairman Platts and Ranking
Member Towns for your interest. I think we really need to
update this law. The fact that it says you should get a
response in 10 days and absolutely no one is adhering to that,
and maybe they can't with the backlog that is there.
What is really startling to me is news agencies that are in
the position with staff and support and in the job of doing a
story are having trouble getting information. You can imagine
what Joe Blow or Jane Blow, how hard it is for them to get any
inquiry answered.
I thought it was interesting where the news organizations
said they can't afford to go into court. Well, how can a
citizen afford to go into court? There is really no punishment
now for an agency not responding. Very startling, I thought,
was Mr. Smith's statement that one reporter kept calling and
calling and they said, well, we just thought we would never
have to respond because we usually wait a year or two before we
respond and usually most people give up.
So, it shows we have to put some type of enforcement behind
it that is reasonable. Obviously, with limited resources and so
forth that has to be taken into consideration, but a law that
has no teeth and no enforcement is not really a law; it is a
joke. I think we really have to update it. It is an important
law. It is one we need to work on.
I thought Mr. Tapscott's statement that one agency, when
inquired about salary levels, said this was personal
information of what an administrator is paid is absolutely
ridiculous. I think we are all public employees. The public
pays us and is entitled to know what our salaries are. But I
think it underscores the cavalier response that some agencies
have to not hand out any information.
If a news agency can't even get what the pay scale is in an
agency, what does that tell you? That is redacted. What I am
hearing from so many of my constituents is that everything is
redacted.
I think we need something more than an ombudsman, I think
we need a review of the redactions to see whether they are
active or not. That is basically what it is. To say that you
can go to an administrative review within the agency that is
telling you you can't see that information, I would suggest
that when we get this report back from whomever it will be that
in the administrative review Joe Blow and Jane Blow and
possibly the new agencies never win.
I would like to ask the panel, have you ever been involved
in an administrative review of redactions or really turning
down your request and what was your experience in the
administrative reviews?
I must say we are not getting the story out. I try to know
what is going on. I was not aware that you had the
administrative review. Have you used the administrative review
or have your reporters or other news agencies, when denied
information or when redactions appear to be excessive, have you
gone to the administrative review process which was mentioned?
Mr. Smith. Ma'am, if we have I am not familiar with it, but
we sure have spent a lot of money on attorneys.
Mrs. Maloney. If you could look into how newspapers have
used the administrative review process and see whether or not
that has been successful for them or not, I think that would be
information that the chair would like to see and I would like
to see it, too.
What is your experience with the administrative review
process?
Mr. Schwartz. Representative Maloney, we have had a review,
an administrative review on cost issues in terms of we are a
public interest organization, we are saying that we are going
to post this information that we are receiving on the Internet
for the public. We were going to make it publicly available.
This agency wanted us to pay. We made a case. There was a
review. They told us that we still have to pay.
We decided that the $150 that it was costing us was less
than we would spend bringing it to court. I think this is the
case in a lot of cases. We just paid the money and got the
documents, even though we felt that it was the wrong decision.
Mr. Tapscott. Congresswoman, I have been involved in
several administrative appeals as a reporter, specifically
covering the General Services Administration some years ago.
GSA frequently used the redaction process to avoid providing
the kinds of information that it seemed to us at the time
should have been provided.
I have occasion to ask reporters frequently now, when they
tell me they have been denied, are you going to do an
administrative appeal? More often than not they look at me
either like I am nuts or they laugh at me.
Mrs. Maloney. When you did an administrative review, did
you win?
Mr. Tapscott. No, never.
Mrs. Maloney. You did not?
Mr. Tapscott. No.
Mrs. Maloney. So, see, I think most people will think, hey,
I'm going to go back to the same person who told me I can't see
it for an administrative review. I am not going to win in that
process. I don't think people trust it.
What I find problematic, and I might sound a little like a
Republican now because a lot of my Republican colleagues----
Mr. Platts. We don't mind.
Mrs. Maloney [continuing]. Want to cut back Government, I
think, too much. I'm a Democrat. I think Government does a lot
of great things to help people and Government does a great job
and we need to have more people working in the FOIA office and
so forth. Gosh, what was the point I wanted to make?
Anyway, I am just really concerned that the public is not
getting this information, that it is not accessible and it is
really problematic. I am very sensitive to homeland security
and national security issues, particularly today when we had
quite a scare in the House of Representatives. We evacuated, I
think, in about 3 minutes. It reminded me of the day of
September 11th.
But outside of national security, have members of your
organization, I would like each of you to mention this, have
you identified specific areas where there are increasing
conflicts with agencies in gaining access to Government records
and proceedings outside of national security? Is there any
particular area where you are having more trouble than others?
Mr. Smith. I don't know that I can cite any one particular
area, but over time we have seen an increase in the number of
turn-downs that we have received.
Mrs. Maloney. Yes. Well, I have had some constituents say
they finally get the paper 2 years later and the whole page is
redacted. I mean not the whole page; the whole page could not
be sensitive or personal or national security.
Mr. Schwartz. We are in a privacy organization and we have
been seeing an increase in misuse of the Exemption 6 of the
Privacy Exemption in the way that you said where salaries are
requested.
Mrs. Maloney. Can you give us some examples?
Mr. Schwartz. There have been several cases, particularly
from the Department of Justice where employees that worked on a
particular issue that signed a memo, etc., where their names
are blacked out.
Now, doing their job is not private. It is part of what
they are doing. The fact that their name is on the document is
not private information. If it had personal information about
their personal lives, that would be different. But the fact
that they are involved in a particular case and that their name
is on a memo does not make it personal information.
Mrs. Maloney. If you have ideas of how you think this law
should be changed, in addition to the sort of broad sweeps that
you put in your testimony, such as that specific.
Now, personally I am offended that information that should
be out there for the general public, that they are putting up
barriers so you can't give that information out on a Web site.
I don't understand that.
Issues are complicated. I see my time is up. I thank the
chairman for his attention to this subject.
Mr. Platts. Thank you, Mrs. Maloney.
I will try to squeeze a few more issues in here. One of the
avenues in trying to look at how we proceed to try to
strengthen FOIA in the independence issue and the ombudsman
issue, do the three of you have an opinion on the possibility
if these ladies and gentlemen were in this room they would
cringe at being assigned more work, but our Inspectors General
throughout every department and agency, I spoke to their annual
conference yesterday in Philadelphia.
They are an important independent aspect. In fact, we are
looking at trying to strengthen their independence. There is
legislation that Congressman Cooper has introduced. We have
looked at it and we are trying to see how we can move forward
to strengthen their independence. Are they an avenue, if given
the resources to expand their responsibilities to include
within their respective departments and agencies the ability to
review FOIA compliance?
Mr. Tapscott, it sounds like you don't think that would
work.
Mr. Tapscott. I would be very hesitant about doing that
because in my own experience with a number of the IGs over the
years, and more important the IG staffs, it is not unusual for
an IG staff to be part of the problem rather than part of the
solution. They have an interest, for whatever reason, in
protecting rather than exposing problems within an agency.
I think the problem is not so much the FOI officers
themselves within the agency. More often than not the problem
is the deputy program manager or the deputy assistant secretary
or the GS-13 administrator who simply will not provide the
documents that the FOIA officer is trying to get.
Mr. Schwartz. I somewhat agree with that. I think that some
IGs are very good and very independent. Some have more
questionable histories. So the question is, really, can you set
up an independent ombudsman or an independent body that can do
the reviews, that can report on FOIA compliance over time.
In some cases I would say that the IG is the best place to
put it, but I do see what Mr. Tapscott is saying in other
cases. We have run into IGs that are part of the problem as
well. That could be the case for any independent body that you
set up.
Mr. Platts. My thought is if you are going to look at IGs
it would be after strengthening their independence with fixed
terms and allowing them especially in some of the smaller
departments and agencies where the IG is appointed by the
agency head, that just tells us how much independence there is
to begin with when you are appointed by the person you are
actually charged with kind of overseeing. So, I agree that we
would have to be strengthening that independence before looking
to expand them as an independent entity in looking at FOIA
compliance.
Mrs. Maloney may have touched on this a little bit. Mr.
Smith, this relates probably most directly to you or maybe Mr.
Tapscott in your prior service in the media. The expedited
review process which is newer, how familiar are you with
requests made under expedited review and your belief on how
compliance with expedited review is better than typical FOIA
requests or is it the same, no real difference?
Mr. Tapscott. Expedited review means they tell you no
sooner.
Mr. Platts. They tell you another story?
Mr. Tapscott. They tell you no. I am not exaggerating when
I say that. I am not aware and I am not presuming to have a
comprehensive knowledge of all the expedited requests, but I
have not heard reporters coming and saying, hey, this expedited
review process is a great thing.
Mr. Platts. It doesn't seem to have made any difference?
Mr. Smith. I concur. I don't think we would be sitting here
today making these recommendations if this were at the top of
the solution file.
Mr. Platts. The change in policy in the fall of 2001 with
the Attorney General, I think I probably know what your answers
are, but your belief is that lessened access because of
changing the presumption or has not really had an impact, and
that the compliance with FOIA today is pretty much the same as
before; it is not an executive action, it is a statutory
problem that we have.
Mr. Smith. Inferentially, I think it has had a very big
effect. It is leadership of a kind. I think Mark made the point
a moment ago when you were asking about the Inspectors General.
Ultimately it comes down to leadership. Is there a bias in
favor of openness or is there a bias to be closed? It is a heck
of a lot easier to say no than it is to say yes.
I think that memorandum made it much, much easier for folks
to say no.
Mr. Schwartz. I have had conversations with FOIA officers
where I have asked them that question, have you been holding
back documents that you would have released in the past and
their answer was yes, that they have specifically denied
requests that they would have accepted in the past.
Mr. Tapscott. I think the National Security Archive, one of
the questions that they asked back in 2003 was specifically,
has that memo made any difference? If I recall correctly, and I
could be corrected, I believe only 5 of the 35 agencies
indicated that it had made any difference at all.
Frankly, that did not surprise me because again it is not
the senior level folks in agencies that made the day-to-day
decisions about FOIA, it is the career people. Frankly, they
don't feel too much concern about ignoring directives from John
Ashcroft or his predecessor.
Mr. Platts. And that goes to the issue of consequences?
Mr. Tapscott. Absolutely.
Mr. Platts. It is just human nature if you know that
failure to do something--I have a 6-year old and an 8-year old.
If I tell them do it and they don't, well, it is maybe bedtime
but nothing is going to happen if I don't get in bed and lay
down. It is probably one of the hardest parts of being a
parent, making sure there are consequences so they learn that
lesson. But in the Federal Government it seems like we just shy
away from consequences of any kind.
Mr. Tapscott. Mr. Chairman, if you ask the Justice
Department, Mr. Nichols how many times the Justice Department
OIP office has directed an agency to change a FOIA decision,
both before 2001 and after, I am almost certain you will see
that there is no difference.
Mr. Platts. Yes, and actually I think in his answer when I
asked his familiarity with any instances when Justice has
directed somebody to do something because of non-compliance, he
wasn't aware of any that he could cite. I don't think anyone
behind him that was assisting him had any additional
information to add to that.
Mrs. Maloney, do you have additional questions?
Mrs. Maloney. Yes, I do. I would like to ask Mr. Schwartz,
you mentioned in your testimony your concern with the
congressional designation of so-called B-3 exemptions, the
categories of records exempt from FOIA and public disclosure.
Would you elaborate on what the B-3 exemptions are? Anybody can
answer this, but if you would start, and could you give us one
example of a category that was given a B-3 designation and
explain how this category could have been better handled for
public disclosure purposes?
I would like to followup and ask all of the panelists if
they would like to discuss it, if you would like to discuss the
exemptions. Do you think they are too broad, that they should
be more narrow? How would you change the exemptions? Do you
think they are abused? I specifically want Mr. Schwartz to
respond to the point that he made in his testimony.
Mr. Schwartz. A B-3 exemption is an exemption where
Congress specifically exempts one category of information from
the Freedom of Information Act. So, when Congress says this is
exempt from the Freedom of Information Act, this type of
information, it becomes a B-3 exemption.
Mrs. Maloney. How many? There are six of them now, right?
How many B-3 exemptions are there now?
Mr. Schwartz. I don't have the list. I don't know if either
of my colleagues have it.
Mrs. Maloney. In other words, how could we control this
without going to a review process by writing the law possibly
more explicitly so that the salary ranges of employees of the
Federal Government are subject to a FOIA request?
Mr. Schwartz. Well, in that case it is the agency saying
that this falls under B-6 or the privacy exemption, and in that
case someone could bring the issue to the courts and fight it
out in the courts. I mean we know that people don't do that.
Mrs. Maloney. We already know no one is going to the
courts.
Mr. Schwartz. Right, but in a B-3 case, though, the
presumption is with the Government. That is really where the
concern is. We are pushing more information so that even in the
court the one remedy that we do have out there in the courts is
that it is harder to bring those kind of cases.
Mrs. Maloney. Because the Government makes the decision of
what a B-3 exemption is? Is that what you are saying?
Mr. Schwartz. Congress has made that decision and the
Government is interpreting it, saying that this is what
Congress specifically wanted. For example, as part of the
Homeland Security Act, voluntarily submitted information from
industry about potential concerns in their critical
infrastructure is now exempt from the Freedom of Information
Act under a B-3.
Now, it is our contention that this would already be exempt
under B-1, which is a national security concern, or B-4 which
is confidential business information, or an existing law
enforcement, B-7. So there are three possible places that this
stuff could already be exempt. Then there would at least be the
presumption that you could have this discussion in front of a
judge to say----
Mrs. Maloney. Oh, I see. So when the B-3 is used, the
Government makes the decision and they interpret it so they are
in a stronger position.
Mr. Schwartz. Correct.
Mrs. Maloney. So how do you suggest we change that?
Mr. Schwartz. The best way to go about it is to stop using
the B-3 for every piece of information that comes around. We
are starting to see a lot more bills. Every Congress we see
more and more bills that say, well this needs to be exempted
with a B-3 exemption, when it falls under the other exemptions.
That is why those exemptions are there. By putting everything
under a B-3 we are starting to cloak a lot more information
that wasn't originally meant to be cloaked.
Mrs. Maloney. That is very discouraging and problematic.
Thank you.
Mr. Platts. Thank you, Mrs. Maloney. It might be perfect
timing there. My understanding Mrs. Maloney, is that in the B-3
exemption there are 140-ish different----
Mr. Schwartz. That sounds right. That is correct.
Mr. Platts. There are 140-ish spots in the code where we
have exempted, Congress in recent years or over several years.
So it is a pretty regular practice of late.
On the salary, I meant to mention earlier that request for
salary, public information, as a regular visitor to third and
fourth grade classes to talk about my job, one of the
guaranteed questions is how much I make. If I said I'm not
telling you, I'd better run for the door because those third
and fourth graders are going to get it out of me one way or
another.
I want to thank each of you for the valuable time you
shared with us in your preparation of your testimonies and your
time here today in your oral testimonies. Open government is
something that is so important to the way we operate as a
Nation.
Your insights into how we can strengthen the FOIA
legislation as we go forward is so important because you have
been out there and in various ways experienced it as requesters
and your input is very helpful to us as we go forward.
We will look to work with Senator Cornyn and Lamar Smith
and Congressman Sherman and others who have put forth
legislation on how we can try to advance this cause in a
positive way and strengthen what we are all after, which is a
successful open government that is doing good work for all of
our fellow citizens.
So thanks for being with us. We are going to keep the
record open for 2 weeks. If you have anything additional you
would like to submit, please feel free to do so.
This hearing stands adjourned.
[Whereupon, at 4:28 p.m., the subcommittee was adjourned.]
[Additional information submitted for the hearing record
follow:]
[GRAPHIC] [TIFF OMITTED] T2705.115
[GRAPHIC] [TIFF OMITTED] T2705.116
[GRAPHIC] [TIFF OMITTED] T2705.117
[GRAPHIC] [TIFF OMITTED] T2705.118
[GRAPHIC] [TIFF OMITTED] T2705.119
[GRAPHIC] [TIFF OMITTED] T2705.120
[GRAPHIC] [TIFF OMITTED] T2705.121
[GRAPHIC] [TIFF OMITTED] T2705.122
[GRAPHIC] [TIFF OMITTED] T2705.123
.