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                            INFORMATION ACT



                               before the

                      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/


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


                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
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
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
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

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 ACT


                        WEDNESDAY, MAY 11, 2005

                  House of Representatives,
Subcommittee on Government Management, Finance, and 
                            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 
    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:]

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    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:]

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    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 
    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:]

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    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 
    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 
    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 
    Mr. Platts. Without objection, it is so ordered.
    [The prepared statement of Hon. Edolphus Towns follows:]

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    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 
    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 
    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 




    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.

                     ACCOUNTABILITY OFFICE


    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 
    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 
    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 
    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:]

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    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 
    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 
    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 
    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 
    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:]

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    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 
    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:]

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    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. 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    Mr. Waxman. Thank you very much. I yield back my time, Mr. 
    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 
    Mr. Towns. But most of the time it is a lack of staff, you 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Platts. Is there any specific agency or department that 
raises concerns about their compliance rate regarding expedited 
    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 
    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 
    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 
    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 
    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.
    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 
    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.

                    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 
    [The prepared statement of Mr. Smith follows:]

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    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 
    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 
    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 
    [The prepared statement of Mr. Schwartz follows:]

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    Mr. Platts. Thank you, Mr. Schwartz.
    Mr. 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 
    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 
    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:]

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    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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