>> thank you so much. good seeing you again. i want to focus on performance. we added some language that applies all agency heads that says as you prepare your funding request in consultation with the gao you should directly link your performance. and in there. everything as defined. one of the things that i would ask you to do is when we were looking at the performance.gov and there is is a hand out, i

think we gave you a copy, mr. secretary, i would ask you to look at for example your budget last year was at least $39.2 billion. >> there is probably a number that we attribute out of that to counter terrorism someplace. it depends on what aspects of our mission do you consider counter terrorism? one aspect of the budget goes to counter terrorism. >> i suspect there is is a number assigned to that and i just don't have it offhand. >> if you can get that to us later on roughly. i would venture to say it is billions of dollars?

is that correct? >> and then your number one goal, your number one goal is to prevent terrorism. and then there are measures. now, what you -- would you venture to say that i would ask you to take a look at this? if you spend billions of dollars and your number one goal, your first performance measure is the percentage rated higher in customer feed back to understand the threat. and then you go on the second one, the percentage of intelligence report rated satisfactory or higher in customer feed back.

and then you go into some other ones would you say that for members of appropriation if we. >> brian:uate billions of dollars is how satisfied are those people to get those intelligence report? is that what we should be measuring? >> i'm -- i took everything out of performance.gov. >> the way your question is stated, i would have to say no. >> okay. and then i would venture to say, i mean, i would ask you to go back with your folks and look at this language that we added to the bill. ask you to look at what outcomes -- i think the outcome we ought to be looking should be numbers of terrorist acts committed in the united states should be zero. i think that's the result or impact that we're looking at.

i would ask you to look at that because you are looking at activities. i would ask your staff to look at what an outcome impact is, what output is and all of that. i would also ask you, if you look at one of the things that i'm very familiar with since i breathe the air and drink the water in the rio grande and i live there, on securing the land ports, i think we should have much better measures than what you have here, i would ask you to just look at that. work with us work with gao and members i would ask you to take a look at that. you're familiar of what we did in texas. we had different measures. we would love to sit down and look at this.

and the number one measure is are you happy with the report that we gave you? i think we can do better than that. i would like to yield back the balance of my time. thank you so much. >> thank you. >> thank you. mr. secretary? mr. secretary as you know customs processing at our nation's busiest airports remains a problem. this deters international tourism to the united states costing our economy billions of dollars annually. fiscal 2014 appropriations bill included funding for an additional 2,000 cpb officers. what is your plan for mitigating and eliminating excessive customs and immigration wait times ss at our nation's airports. and approximately, how many of the 2,000 additional cpb

officers do you plan to deploy at our airports? >> congressman, i agree with much of the premise in your question. i agree that one of my missions as secretary of homeland security is -- is promoting and expediting lawful travel and trade. so wait times at airports is a big issue. i will observe that a lot of major airports wait times can spike up ask down very often international flights come in all at once. i'm sure you have experienced the same thing. you are correct that in the fy 14 budget we have 2,000 additional cbp officers, many of whom will be devoted to

airports. an important goal is reduceing wait times facilitating law enforcement travel and i believe we will be able to accomplish that with the additional resources you have given. >> thank you. since the attempted bomb plot in 2010 cpb and tsa have worked closely together and with the industry to create the air cargo advanced screening pilot program. it is my understanding that a draft rule to convert this into a mandatory program has been in discussion for over a year? can you provide any updates on when we can expect to see a published notice of proposed rule making, please sir? >> not specifically. i'm happy to take that question for the record and get back to

you. i agree with you that port security and port screening of inbound cargo should be a top priority. i will get back to you on the timing of the report. >> as a follow up. assuming this rule does get published and go into effect does dhs have sufficient funds to establish targeting centers for the international cargo shipments based on risk? >> i will have to get back to you on that on whether or not we do. >> mr. chairman i'm going to yield back. i have more questions for later. >> thank you mr. chairman. mr. secretary, it's a pleasure to welcome a fellow northern new jersey resident before our committee. we share a common experience having lived in the new york/new

jersey region remembering quite acutely september 11th 2001. i know in your testimony, you sort of expressed some very heartfelt views as to why this new assignment is so important to you. part of your new assignment i guess this is a presidential directive is to focus on the whole issue of cyber security. i note that in your you have $1.27 billion. can you talk a little bit.

>> i'm determined to advance the ball on cyber security. dhs is the coordinator in this rart. i ham very aware of the cyber security threat that this nation vases. and i think we have got to do a better job. i think because of the terms we use it's inpenetratable for a lot of people. one of my missions is to state the threat more clearly so that the average american understands that this has to be a top priority. the $1.2 billion is across the board. it is the lead investigator in the target store issue with the

credit cards in target that is also cyber security. there are a number of opponents invested in cyber security. which is how you get to that number. a large part of that number is the einstein system which is about ready to deploy. as well as response in the private sector and rapid response response. >> could you talk about the private sector? with all the things that are happening out there? >> yes. >> issues of privacy. certain carriers. i think in many ways doing kroijeous things. you have to ben trait we need

working relationships some of whom have grown suspicious and others who have become participants. how do you handle yours yourself and your department in terms of your work in this area and how is it going? >> the biggest thing we can achieve is building relationship s raising the trust with private business with the average american. interfacing with best practices and the like and we are doing that, i am personally committed to that. i am engaging with business leader s leaders there has been a lot of

suspicion raised about national security surveillance practices and a lot of public confusion about what we're doing and not doing. there have been efforts in this congress. i outlined in a speech this will help to clarify what we can do to raise the trust factor. i would like to work with congress to try to get us in a better place. but best practices information sharing, diagnostics, i think that's the key with the private sector.

>> thank you. could you give me the break down of the 2,000 border patrol officers by location? >> we're in the process of doing that right now, sir. >> all right. not to be unfriendly here, but how could you ask for 2,000 if you don't know where you're going to put them? >> it's an overall assessment of what we need. >> where did that come from? why 2,000? why not 1753 or 2162? how did you come up with 2,000? >> first of all -- >> you inherited it. >> i am responsible for it, obviously. my sense is that we are able to make an overall estimate based on where we know we have a need nationwide to get to that number. >> okay. so it would be domestic then? nationwide. so they would be not overseas in

preclearance offices? >> by and large. but some are and should be devoted to preclearance overseas. >> how big do you think that number is? >> offhand, i don't know. we have just opened a preclearance capability as i'm sure you know in abudabi and i think we need to continue to work in that direction. >> how many preclearance offices would we have in the middle east? >> we would like to have more. it depends on the assessment of security in each airport. >> where are the non-middle east preclearance offices? >> you mean airports? >> yes. >> non-middle east. >> oh in europe?

>> um are we not worried about placing so many in the middle east? >> um, the level of security at last points of departure airports tends to vary. some are better than others. in the airports that need a little more help and where the host government is willing to support us. for example, what we hope to have is is a situation where the host government will support our efforts and help pay for it. >> it depends on the ability. >> you propose a fee for this, correct? >> we propose that cbp, our customs efforts be funded in part -- this is largely tsa,

through the fee increases. >> and the fees would go to on an airline ticket are -- where do the fees go? >> if you're talking about dsa, there is a fee that we propose that would be paid by the airline and then there is the 9/11 security fee and i think i'm getting the terminology a little wrong that is paid by the passenger who flies and passes through tsa. if that fee covers it or and hoe

much money is already generated through other fees, i think that would be of interest. >> well the -- the allocation of the additional officers was still a work in progress that we are almost done. so, the aviation infrastructure fee and the security fee would help to sustain tsa. preclearance is a cbp function. >> okay. thank you mr. secretary. >> could i have just to make sure i understand what the line of questioning is, you said border patrol. you mean the men and women in blue. the men and women in green is border patrol. the men and women in blue is cbp

officers. i just want to make sure. for us -- >> i'm talking about cbp. >> the men and women in blue. okay. >> mr. kingston, just for clarification, the the abu dhabi preclearance -- the only one in europe is in ireland and then canada and some in the islands. there is no others over on the european side except shannon? is that correct? >> mr. chairman -- >> and the fee that they're talking about, the immigration user fee on the abu dhabi issue that's a fee that has been in effect since 1980. they are asking for an increase

in the fee. >> that's what i mean. >> but that is is a pretty long time established fee. >> no, no. i know. yes, sir, i know about the fee. but as i understand, there is an additional fee that is being proposed. >> they are asking for an increase in that fee. >> do we know what that additional fee is. >> it is to finance tsa. >> but do we know what the fee is and how much it generates? >> well the aviation security fee -- >> we know what they are and we do know that the increases we're not real excited about. >> it just caught my attention. they all require authorization. >> correct. >> thank you.

>> one is the coast guard and the other is the acquisition status report. should be -- we don't have that. i want to get -- i'm not trying to gotcha, but i want to know when you are going to get that to us but we have got a hearing tomorrow. >> i have directed my staff to give you what we owe you and not delay. i think congress should have what you need to help me. >> it's helpful to have that kind of information as we go into hearing. it saves time. >> understood. >> it makes more accurate questions. >> i understand. >> on to something else which you and i talked about when we first met. mr. secretary, we all note with interest the section of your testimony stating the need to reform the department namely budget reform. >> uh-huh. >> first i would like your

opinion why you believe the budget process needs reforming. and i think to some extent you have, but more in detail where you intend to start. i think that's very important. i, too have an interest as does mr. price in this subject. we are -- we think we can always do better. and so i look forward to working with you on this. i would love to have your information and what your vision is maybe for the benefit of the rest of the meeting. >> my impression is that the budget process is too stove piped. it's developed at the component level. we get the budget request and we react to that at the dhs level. we give it to omb and omb gives it to you. there are certain respects in which dod cannot be a model for dhs. but i think we ought to start with defining what our overall mission is with regard to

counter terrorism, border security aviation security maritime security find your mission. at the dhs level early on in the process, and once you've defined the mission you figure out the resources you need to fulfill a mission and then you expect the components to meet those resource needs, paying attention to potential overlaps gaps, and inefficiencies. i know from personal experience if you plan at the department of defense to fly two major conflicts around the world at once, that's done at the joint staff level you don't ask the army navy marine corps to develop their own sense and you react to that. i think we need to have a more centralized mission focused budget process that starts earlier in the budget cycle that originates at the dhs level and we are building that process now

and i want to work with the committee and get your advice on this as well, mr. chairman. >> i look forward to working with you on that. not to be trite, we are congress and we are here to help. we need to know what your needs are to help do this. and i think this is an interest among all members of this committee that we have an interest in this. >> thank you, mr. chairman. as i said when we started you have a tough job and i would say that one of the toughest challenges is immigration

enforcement. and it's tough because there's a significant amount of disagreement among the american people and it's really one of the few issues for the members of this sub committee who don't regularly see eye 20 eye. wait until we get to the house floor. so this discussion here today, we have focused on the detention bed mandate. i think that a mandate of this source is very unwise. i have made this very unclear. conceivably forces ice to detain individuals at a significant cost to the taxpayer who don't meet the criteria for detention. and then there's the question about the enforcement of immigration law, deportation. how do you pry ortize as any

prosecuting office would have to do how do you pry ortize your cases, your most dangerous individuals to focus on? and make the best use of limited resource s resources i would like to invite you to reflect on this. how much if at all these di le mas might be made more resolvable if we had better data, more more comprehensive information, we're working, as you know, at the staff level on this right now to get more detailed data on exactly how detention is working and how deportation is working. how we're enforcing immigration law. i don't think the best data in the world will bring us theconsensus.

we find ourselves wondering. the example that was brought up how typical is that? is that really what we're dealing with in substantial numbers in terms of these specific decisions that are made on detention? i certainly wonder about deportation. we all hear about the anecdotes about people who should have been deported who weren't and even more those who probably shouldn't have been prioritized who were. families that were broken up unnecessarily. the situation with these -- i mean, some people go so far as to suggest -- i don't think anybody on this committee, but some of our colleagues -- go as far as to suggest there really is no difference shouldn't be in difference between a dream act student and a hardened criminal. that if you give priority to the latter, then that really is declaring amnesty. i mean, that is absurd,

obviously. but there still are important differences, and here, too, we're not exactly certain what we're dealing with. the department has data has data that suggests there has been an increasingly sharp focus on dangerous people for deportation, but we all know that that case is something less than airtight and the reality is somewhat messy and probably we would be better served by more precise data and more precise information about exactly what we're dealing with. i guess i'm just asking you to reflect on that how much would better data help you? i certainly think it would help us. and we might see disagreement if we knew exactly what we were dealing with here, so i do want to ask for your help in getting better information on this area

and particularly in this area of prosecutorial discretion or the analogy to prosecutorial discretion in terms of the enforcement, deportation decisions you're making. the decision about whom to go after. what you think improouved data is going to show us in terms of how far you've come and how far you still need to go. >> mr. price i agree that informed judgment is always better than uninformed judgment. i'd rather arm you with information so that we can haven an informed discussion about the correct approach to immigration reform. as the immigration reform debate advances, i've had a number of members of congress, house and senate express similar sentiment to me. and i'm committed to giving you

the information you need, right? i had this discussion of a similar nature as recently as earlier today with some members of the senate so if there's a specific request that this committee has with regard to data, with you know removals priorities, happy to consider it, and i've pledged number of times to be transparent with congress on issues of this nature. sometimes we have certain law enforcement sensitivities, so i might ask you to accept the information with certain protections and the like, but in general, i agree with the need to provide the congress with information of this type so that we can all make informed judgments. >> thank you, mr. chairman. >> thank you, mr. chairman. to follow up on the subject we've all been keenly interested in, of course, is the number of

detention beds and the folks that you've got here in the country that are not legally present. the -- as in 2013, mr. secretary, i used 368,,000 violators all of whom met the definition of mandatory detentions. you've got a tremendous number of people here who were -- that number -- folks, for example, that have been accorded due process. people who had entered the country illegally. they received a final order of approval but they remain in the country in defiance of that order. at the end of july 2013, there were 872,000 individuals on issa's docket who met those -- in that category. they've gone through the whole process and they've been ordered

removed. the vast majority of those just simply disappeared. so in light of that what are the assumptions that you're making that would justify the agency recommending that you only need 30539 detention beds? since you obviously have plenty of customers. >> well, obviously -- a couple of comments. obviously, not everyone among the 368,000 that were removed in fy '13 had been held in detention for the entire time they were in the united states. a large part of that population was at liberty for some period of time and then they were subject to our process and they were removed. the other point i'd make is that a very large fraction tsh-- i don't know the number offhand, but a very large fraction of that

368,000 are basically border removals where they're apprehended in and around the border. >> the border patrol just takes care of it. >> and they're given over to i.c.e. because either they can't be sent right back to mexico or some other reason, so a lot of these are border removals. where they're in the country for a very short period of time. you know, we're criticized by some for the very high number of removals that are taking place right now and so the end result of a process where somebody is detained who is not lawfulry in ryly in this country who meets our priorities is a removal, and as you know, we remove we manage to remove 368,000 people last year and my understanding is that

>> the restore the presumption of openness. i worry that they get undermined by the growing use of foia exemptions. i referenced this in my opening statement the recent report by openthegovernment.org. they said federal agencies use foia exemption five to withhold information more than 79,000 times in 2012 41% increase.

why are they relying so extensively on exemption five? and those were the numbers for 2012. what happened to 2013? [inaudible] >> is your microphone on? >> there's a couple of things i want to point out regarding the use of looking at the statistics such as that. first of all the use of extensions is going to necessary fluctuate from year to year. we have had years in the past where the number of citations to exemption five went down. sometimes it goes up so does fluctuate. that will be very much driven by the tides a request that agencies receive. agencies have no control over what types of records are asked for. third, the use of exemption five this past year over 85% of uses

of exemption five are attributed to to agencies. last year when they looked at the use of exemption five one of those agencies overwhelmingly had been processing records that were subject to protection under the attorney work product privilege which -- >> what were the two agencies? >> dhs and eeoc. both of those agencies use exemption five to protect attorney work product and attorney-client information which is not subject to discretion in release. these are all reasons why we would -- and lastly am under the important thing to keep in mind is that an agency might be processing a record and releasing everything on a page other than one sentence. that if the use exemption five to protect one seconds they're going to be citing exemption five and that will count as a

use of the exemption. so the number of citations doesn't tell you how much is being released or how much is being withheld. and for all those reasons what we've asked agencies to do in the chief foia office reports is give examples of discretion releases so there is a public accountability for actual increases in released. >> the attorney general guidelines said they will not defend agencies decision to deny foia request unless it would cause a foreseeable harm. harm. >> correct. >> but only three of the 15 agencies process the most foia requests have promulgated regulations to adopt this. is their foot dragging going on or is this just -- >> no. the agencies across the

government have embraced the guidelines. regulations were not required to implement the attorney general's foia guidelines and we have a very robust accountability for the implementation which details wi-fi a steps to agencies are taking come specifically to advance a resumption of openness. but also to use technology and to improve efficiency. they are all addressed in the chief foia officer report. >> let me go to ms. nisbet, mentioned spring ever comes, i want you to know that in vermont they have four or five inches of snow a day usually news says we'll have a dusting tomorrow no more than 45 inches. they did announce tomorrow will be a moderate to heavy your

snow 18-20 inches. and it's conceivable schools could open an hour late. [laughter] we could open our time if we were anywhere near as much equipment as they have here in this area to clear snow, but we don't. we do the best we can. to be serious, we are considering a legislative proposal to make ogis more independent by allowing ogis to make recommendations on improving foia process and make those recommendations directly to congress. do you support proposal? >> senator leahy the administration has not yet taken a position on h.r. 1211 and i'm not able to comment.

i will say i really always appreciate the attention to ogis, and i'll be interested to see what happens. >> i understand the reason yet to be cautious, but ogis made nine recommendations to congress but seen that those were delayed for so long because the of you know, omb or department of justice looking at it, i hope it can reach a point where recommendations can be made directly to us. he also had accountable -- office of government accountability office study last year you don't have adequate staffing and resources to form the dual mission of reviewing agency foia compliance and also

providing mediation service can be very central to get something done. so i will ask you this question. does ogis have adequate staff and resources to carry out its work? >> mr. chairman, let me answer that in a couple of ways. a number of commenters i think even before ogis opened its doors, noted that with a broad mission that we have that the dual mission that we have to review and to provide mediation services, either one of those missions would be quite a challenge for the office that we have. we have tried to do as best we can with that. we have been challenged at times, and as i mentioned, our caseload in mediation is up significantly from the year

before. with that having been said, we are looking at ways to take the gao recommendations into effect. and i am pleased to tell you that our agency has approved hiring three additional staff members for ogis, in large part to work on the review part of our mission. and we are very much looking forward to getting those people on board. >> well, let me, i'm not restrained on the area of what i said. i believe you need more staff to carry this out because i think again, i don't care if every republican or democratic administration, to be able to move quickly and effectively in foia requests. most are very reasonable to move quickly and thoroughly on them is extremely important to the democracy in this country.

senator grassley had to step up. he suggests we go next to senator blumenthal. and i will say as i said before, i think we are lucky that senator blumenthal is here. >> thank you, mr. chairman. thank you very much, and i appreciate your having this hearing which i think is profoundly important. i recognize your leadership in the area of open government and freedom of information act i appreciate this panel being here today. ms. pustay, you used the word earlier robust to refer to the initiatives going forward. i think it's hard to square the term robust with the frustration and sometimes anger that people feel we hear as their representatives. and i wonder what additional

steps or what kinds of recommendations you would make to this committee, whether it's the legislation that's been proposed or other measures to make this process work better and convince people that their government is, in fact, open and complying with the law? >> well, respectfully i disagree with the premise in that i think that the agencies are robustly -- i don't have a problem using the word they are robustly using the law. it's not to say there's not for the improvements that can be made, but we have across the government record high numbers of incoming foia requests, and get agencies process more foia requests last year than ever before. the past five years we have agencies releasing records for or in part in over 90% of cases. we have many examples of agencies putting records out on the website to help make information of able to the public without the need for a

foia request. so we have seen a lot of concrete steps that agencies have taken to improve access to information. we do think there are further steps that we can take, and one of those i detailed five of them but to even focus on one of the five that i think has a lot of potential to help both agencies and requesters is our project to create a uniform or common foia regulation or the idea would be to streamline and standardize some of the core procedures procedural parts of administering the foia, making them the same across agencies to the extent we can. that i think would have a direct day-to-day impact on the common foia requester who would find it much easier to know there's a same time period for filing an appeal, for example, in everything one of the 90 that agencies. >> why does not exist now?

>> it's an idea it's a new idea to have a common look at right now we've 99 agencies with 99 cents of foia regulation. so one of our initiatives is to explore the legal feasibility first and foremost of doing that. and then working together as an interagency team and also getting comments from the public about the content of those. >> and who was responsible for the project? >> my office is leading the project but we are having input from across the government, requested committee, certainly my friend miriam at ogis will all be part of the team to do this to have a thoughtful study and analysis of how best to do it. >> what is your timeframe -- timeline for inflicting a common regular should? >> we're going to start the process this spring. so we been talking a lot about spring in this hearing, so very soon will start the process of

actually having meetings and delving into the different come to the different mechanics of doing so but it's a one or two-year project. >> well, i would except come with all due respect to the use of the word robust if this candid revelation were already in place. similarly with improving the agency's internal processes. >> right. >> who's in charge of the project? >> oip is leading an effort to have, great opportunities for agencies to share the best practices. across the government we have any examples of agencies doing some really terrific things. for example, in technology or taking steps have helped them reduce the backlog. there's a wide variety of issues connected with foia administration.

with 99 agencies we have the stars we can identify for everyone of those topics. and so the idea there is to have agency, a group of agencies have done very well on a particular topic. share their experiences their kids, their strategies for success with everyone else. then we will create written documentation of those strategies, make those of able online. the whole idea is to have some synergy and have agencies be able to learn from one another. >> and i very much applaud and welcome those kinds of initiatives. my suggestion is that the sooner that you implement them because the only real obstacle of implementing them is the resources that you have and the organizational skills of people trying to achieve them. the more likely it is you will avoid legislation that will tell you and give you dates about what to do. >> right.

we've already announced on our website the start of the series of meetings. with lots of agencies that have already indicated to us that they're really excited and interested to serve on panels. we've got more suggestions for topics and with months in the year so i think this will be a really, i don't want to keep using the word robust but i think this will be a very energetic project. >> you questioned the premise of my question, which is that the procedures were not robust but you didn't question the premise the more important premise that the public is frustrated and unhappy with the pace of responses in the amount of information provided, i think when you mention freedom of oppression to the ordinary citizen. by the way it's true state government as well as federal. there's a common reaction for anybody who is any expense with it that it doesn't function well well. >> we have come in addition to processing more requests across

the government this past year, the agencies improve processing time. so i guess i do i do have a response to that that characterization. we have been able to reduce the processing time for simple track of foia requests. there's no doubt though that there is an incredible interest by the public in getting access to information and with over 700,000 requests filed each year. we were fortunate i think in the united states that the public really embraces the use of its freedom of information act. but to help agencies increase their capacity to deal with that at high volume of requests that's what we think technology would hold a lot of great potential. and particularly the more sophisticated technology tools that help with processing it to the extent manual processes can be changed over into automated processes. the actual time per request can

be reduced. that timmy has the most potential to increase timeliness across the board. >> i would second your comment about, that we should welcome the publics interest in what the government has at a time when we kind of moan about the cynicism and distrust the government of these some of these requester at the information are motivated that feeling of doubt or question what government does but at the same time a lot of it is simple curiosity and interest which we should welcome. and support, and aid and abet. >> right. >> so the better and quicker that we tried to provide information, the better democracy works which is kind of a less articulate statement than many provide about the reason we have freedom of information laws. so thank you, mr. chairman.

>> thank you senator. you have been a strong supporter of freedom of information act. as i said at the beginning senator grassley is joining us on a number of the pieces of legislation made foia even more effective. yield to senator grassley. >> i hope there's not a lot of membership today, but i hope you get a view from all of us in a bipartisan way that we are very certain about making foia work, and withholding information isn't justified. director pustay, you heard me mention in my opening statement about -- now that the case has been decided i would like to ask you some questions about the office of information policy role in that case. bottom line, then i will follow it up with specifics, whether or

not you have a seat at the table so that you or your office is able to provide insight or assistance in those handling the case. were you involved in preparing a brief, or if not going that far were you consulted at all? >> because you are still asking me questions connected with litigation even though it's not ongoing, it's not appropriate for me to go behind the scenes and talk about it. i would refer you to the briefs we found in that litigation for the statement, the position the government took. but what i can tell you is that -- >> before you go on what's ongoing when the d.c. circuit has made a decision? >> no, i didn't a, i know it's not ongoing anymore but it's not appropriate for me to go behind the scenes to talk about litigation, procedures or

strategies and to position the government took is in our briefs that are publicly available. >> yeah but, since you're such a key player in this whole thing if they don't seek your advice we ought to know that. why wouldn't they seek your advice? if they didn't, you can just say no, they didn't seek your advice. >> as i said it's just not appropriate for me to talk about behind the scenes discussions that go on at the department of justice in connection with litigation. >> i'm not a lawyer here but can ask the lawyers on the staff whether that's an appropriate thing once a decision has been made? >> the attorney work product privilege extends beyond the conclusion of the litigation i can tell you that. >> okay, go headed to would've you want to kill me but i don't think it will be of much value but go ahead. >> what i thought might be helpful to you senator grassley, is to know that we got a number of steps, taken a

number of steps since the attorney general's foia guidelines were issued to help agencies improve their experience with help agencies and requesters interact more productively together. and in particular we've issued the over the course of the past several years to guidance articles specifically on to the importance of good communication with requesters. in doing so we've taken into account, gotten a lot of suggestions from the requester community, the requester roundtables and regular updates i have with the open government groups, and i have taken that information and put it into guidance to agencies, all designed to help improve the way agencies interact with requesters. i think that is a very good example of how my office through our guidance function is improving the process. >> i want to ask you another

question. last year i pointed out my concerns regarding increase litigation on foia. specifically, we have is 2012 study finding that there were more court complaints from requesters to get documents under freedom of information act during president obama's first term as compared to bush's second term it seems to me the government is falling short of achieving unprecedented transparency. this problem highlights questions surrounding use of the foreseeable harm standard, attorney general holder has instructed the agencies to apply the standard in litigation, and agency decision-making. doing so encourages discretionary disclosures were ever possible. so my question, during this administration has the justice department ever applied for siebel harm standard and you decide not to defend and agency

and freedom of information lawsuit? >> the department of justice then yes, the answer to question is yes. through the review process that our litigators goes with agencies when a foia lawsuit is filed. there have been situations where information was released as a result of applying the attorney general's guidelines but an example of those are actually contained and publish court opinions. >> maybe you can give us because the next question i've been asked you to provide a list of those cases. you might just give us a citation so we can get to them. them. >> certainly. i will be happy to do that. >> then i will go to ms. nisbet. your testimony notes that the administration goal is to find the process for requesters and agency professionals, specifically improving the online process for making and tracking freedom of information requests. i know that the national archives and other agencies participate in foia online

portal. code like to hear from you about what we should consider when we examine this matter so this question but given the agencies vary in size and operation, how can a single online portal be treated that avoid one size fits all approach? and on this point has a failure to accommodate the differences between agencies caused in the agency to terminate its use of foia online? before you answer, i understand that the treasury department no longer uses foia online order. so i think it's helpful that we carefully consider how to establish online systems that are being utilized by multiple agencies of different sizes. so, can you answer that for me? >> yes, senator grassley, i hope i can answer all of those questions. foia online launched october

october 12012, so it's been operating for about a year and a half. there are currently seven agencies that are partners in it. the national archives and records administration is one, and we would certainly be an example of one of the small agencies. we are quite small compared to some of the others department of commerce, customs and border protection has recently joined and the department of the navy joined just this february. so just barely more than a month ago. the goal is to have a shared service. it is to accommodate both small agencies and large agencies and we have not had we, the partnership, a foia online, have not discovered that there's been an issue doing that. in other words, by baseball agency or a large, the system seems to be working quite well. we've heard good feedback from

requesters and we think it's going to be a good model for looking at either continuing to expand it what you hope will happen, or to the next version that comes along. treasury data belong for about a year. it was, in fact creating its own system, but it wasn't up and running at the time that foia online at up and running. so treasury joined during such time as it was able to take advantage of that multi-agency portal until it was ready to launch its own expanded foia request system. >> i have one more question i'm going to ask you to answer in writing. mr. chairman, i'd like to ask ms. nisbet to take a message back to the archivist. i'm continuing to look closer at the national archives inspector general being kept on

administered leave for over 70 months. you know almost $200,000 of taxpayers money that's been waited while we're waiting to resolve problems there. i think it's severely harms the credibility of the national archives and needs to be resulted i would appreciate if you would tell them that. >> yes, sir, i will. >> thank you. spent thank you, both of you, for answering. >> thanks, senator grassley. director pustay, thank you for testifying this morning. i'm sorry, i got here late. the center for effective government just came out of report grading the 15 agencies that received by far the most foia request come over 90% of all information requests. that the federal government received a none of the 15 agencies received -- seven got in after. i'm particularly concerned about the long delays that people must

undergo when they wait for records. notably including requests from groups are seeking information to make sure that federal contractors are complying with important labor laws. it seems like reform is necessary. what are some of the biggest problems that agencies face is the work to comply with foia and what can we do to resolve those problems? >> the primary reasons that agencies give for having backlogs are the increases in the number of requests coming in it and as i said for the past five years we've had a steady lead growing number of requests for information coming into the government. the people, more request to handle. and although many agencies are able to increase the number of requests a process to meet the incoming command the second thing that's been happening is that the requests are more complex than they were before.

and i think in some ways as agencies post more information online, what comes in as request intends to be a more complicated matter. so putting those two things together, in my opinion the best way, or one of the best ways we would have to really actually tackle that is the topic of this their hearing, tech don't you. i am very hopeful that the more advanced, sophisticated technology tools that can actually help agencies search for records and duplicate records and sort records, all the things that many times are done manually, if they can be automated to increase, to time and is that that in turn will allow the agency to get back to the requesters in a fast way. so that to me is the best approach we have to that issue.

>> how long will that take the? >> as i said in my opening statement last year 68 agencies reported using advanced technology tools. so it's been when you look back a few years and foia administration when we were using much more basic technology, there has been a real leaps and bounds forward. agencies obviously embrace and appreciate the use of these more sophisticated technology tools. one of the focuses of the guidelines is to ask agencies every year to report on what are you doing to increase their inefficiencies. every agency will have different reasons, different reasons for delays or different reasons where, different choke points in the process. and looking every year at efficiencies and finding ways to make the process more efficient and more smooth is another key

aspect of what we've been doing under the attorney general guideline. and those are improvements that are being made, so far, for fighters under the guidelines and that will continue to encourage going forward. >> well, if have to agencies are getting an them and as you said most of the agencies seem to be using this advanced technology i think there's something systemically wrong here. when you came to testify before the committee last year we talked about the big agencies and specifically department of justice working to update their foia regulations to be consistent with the open government act which was passed six years ago now, and the attorney general's march, 2001 memo setting out the administrations policy on foia at the time he said the department still working on its own regulations which it hope would serve as model for other agencies.

this model for other agencies, why is the department still not done with it? and what is the status of these regulations the? >> i can report that the regulations are now undergoing a regulatory review process -- >> regulation are undergoing a regulatory review process spent yes, required by executive order 12866 to really give you the details of it. so there's a specific process. we are at the tail end of the process, and it's now in this interagency review stage. so we really are optimistic that they will be ready soon. i do want to go re-emphasize to you, i know we talked about this before, the attorney general's guidelines did not require implementing regulations. we have been working steadily and very aggressively since they were issued in 2009 temperment those guidelines not just at doj but across the government. no revelatory changes were

needed. we have required agencies to report on their progress in improving the guidelines through the chief foia officer reports. so we have a very full record of not just what doj has been doing for the past five years under the guidelines but what all agencies have been doing to increase transparency. >> hopefully next will be getting better grades. thank you both for your testimony. i would like -- you are excused and it would like to invite the witnesses on our second panel to come forward. [inaudible conversations] >> well, first of all welcome and thank you for taking time

from your busy schedules to be with us today. our first witness is amy bennett, the assistant director at openthegovernment.org. openthegovernment.org is a coalition of 80 plus organizations seeking to make the federal government more open and accountable. our next witness is dr. david cuillier, director and associate professor of the university of arizona school of journalism. dr. jacobe or is also the president of the society of professional journalists, the largest organization of journalists in the united states. our final witness is daniel j. metcalfe. he is the adjunct professor and executive director of the collaboration on government secrecy at the washington college of law of -- uncertain the washington college of law at american university.

and he is the former director of the department of justice office of information and privacy. i'd like to thank you all for joining us. i'd like to give each of our five minutes to make your opening statements. your complete written testimonies will be included in the record. ms. bennett, please go ahead. [inaudible] >> i think your mic might not be on. >> there we go. so thank you for the opportunity to speak about reintegrating the freedom of information act and for your unwavering commitment to protecting and strengthening the public's right to know. my name is amy bennett and an assistant director at openthegovernment.org, galicia more than 80 organizations dedicated to openness and accountability. currently the foia is anything but an efficient toll from an effective dose of the public can use to get time access to government records. members of public must contend

with delays, mind-boggling barriers and bureaucratic resistance to disclosure because agency officials believe information and agency directors belong to the agency, not the people. there's a doubt that technology has been extremely useful in speaking for a processes while also making it easier for the public to use and reuse government information. technology is not the entire answer. we hope the committee will approve amendments to the foia addressing to the issues discussed below and in my written testimony. foremost among these, the open government committee would like to see congress put tighter bounded around the use of voice exemption five. or as been requested like to refer to, that we don't want to give it to you exemption. exemption five isn't it to protect the government's deliberative process, among other things and was intended to have as our all foia exemptions, narrow application to overtime, federal agencies have expanded the scope of exemption five to the point it covers practically

anything that is not a final version of a document. in one recent example the central intelligence agency denied a request from national city archives for a copy of the cia's internal history of the 1961 bay of pigs disaster. the request was denied despite the fact the draft is connected to no policy decision by the cia and its went to events that occurred more than 50 years ago. exemption five has also recently been invoked to flatly deny the public access to opinions by the office of legal counsel. in recent years we have seen the government rely on these opinions to authorize a number of programs to go well beyond the plain reading of the law. secret interpretations of the law prevents the public from having fully informed debate about government policy and erodes the public trust in the executive branch and in its decisions. in terms of needed reforms took center five, two examples. one, exemption five needs the

public balancing test. but if the government were not convinced the requested document would advance the public interest a requester would still have the opportunity to ask a court to individually way that governments need in invoking approach against the requester. there needs to be a time limit. currently a presence record only protected from release for 12 years after he leaves office. we should not a court more secrecy the agency business and record of the president of the united states. the next article issue relates to the office of government information services. the open government committee strong support ogis and we appreciate the leadership and great in the office. you will not be surprised when i tell you ogis continues to struggle in its dual roles as foia mediator and as the office charged with reviewing agency could foia complaint about many changes to congress and the president. the first limitation faced by ogis to be abandoned the clergy this committee thanks to senator grassley sharps -- sharp question we should not together by synergy drive down to the office of management and budget

to make sure the ogis recommendations are delivered in a timely fashion. o. just need to direct reporting that can give you and the president opinions and recommendations based on the problems that they see. the second limitation is the age-old problem of resources. right now the office consists of a staff of seven. seven people have each agency foia office and hundreds of thousands of foia request is big they need new resource to promote and support the offices were. we believe congress should approve at least two new position a director of enforcement and a director of operation. to further strengthen dr. cuillier's -- ogis's ability to carry out its mission. the lack of a third to compel agencies to purchase made in the mediation process. currently ogis at a requester that seeks ogis assistance must let on the google of an agency involved in a dispute. for ogis deserve all requesters we seek mediation served in congress should require agencies to operate with ogis and to

provide information if requested. openthegovernment.org partners are eager to work with you to draft a strong bill that makes for your work better for the public. in addition the other issues discussed in my written test test and i'm cementing a much longer list of reforms we would like to see enacted. we also think there are several good ideas in recent passed house bill and include with my custom is what a letter signed by more than 25 organizations endorsing that builds and calling attention to particularly could provision. thank you for the opportunity to speak about this critical issue and i look forward to answer any of your questions. >> thank you, ms. bennett. dr. cuillier. >> thank you, senator franken. i want to thank you for the opportunity to testify today on behalf of the society of professional journalists and the sunshine government initiative. as you know we are passionate about access to government information. foia helps the drones reveal corruption, expose problems in society, and our citizens to

recently journalistic use foia to expose dangers of crime aboard krisher prefigures foia to -- among federal reserve bank presidenpresiden t. they just for you to show a drug companies influence what appears on warning labels. foia makes a difference and it saves lives. but i'm here today to say that foia is terribly, terribly broken and it needs more than just reinvigoration. it really needs resuscitation to you all have worked hard to improve foia. in 2007 open government act, creation of ogis. for that we thank you. off great, but on the ground today people to access to information is actually more and more restrictive restricted than ever. for example, this year the u.s. dropped 13 spots inward ranking of press freedom, down to 46th place behind such countries as romania, el salvador and botswana. when you compare foia laws around the world, the statutes among the 90 or so countries that have been, the u.s. now ranks come and get this 44th

nearly in the second half in foia statute strength in the world. we have a weaker foia laws and uganda kazakhstan, mexico and russia. well this trend is supported by other recent research. the associated press found the use of exceptions has increased 22%. i study out of penn station of the agency station of the agency had used private see exemption to more often the new bobbin administration and the bush administration. interface and anecdotally journalists report increased delays excessive fees and agencies frankly gaming the system. journalists are angry. they are lived, and i've never seen them as angry as they are not the you may recall that chemical contamination of drinking water a few months ago in west virginia affecting 30,000 residents, there's a reporter over there he has been

stonewalled by the epa and cdcp the requested records regarding health risk to pregnant women. last week the cdc denied his petition for expedited review. they told him there was no urgent need to inform the public about the matter. another reporter told me about a data request initiated a couple years ago with immigration and customs enforcement. after resistance and delays come immigration referred the matter to ogis were mediation. but then after more delays, they decided not to go through mediation. then they said too much time had passed and the reporter couldn't at heel anymore. so case closed. now the reporter has to submit another request and start over. it's that kind of behavior that we see that is causing a lot of problems but agencies are getting more sophisticated and deny, delay and delay -- derailing request. we can reverse this trend, but it's going to take significant action.

such as number one we probably should codify the presumption of openness. let's enshrine into law that record should be free of able to public unless disclosure would cause a specific foreseeable and identifiable harm. number two definitely as we've heard here, strengthen ogis needs more staff, needs more independent, needs more authority. ogis should have a chief of foia officers council to recommend changes. ogis should have enforcement powers. some states have greater enforcement mechanisms, even mexico has, so why not the u.s. government? really. number three streamline the process. it's good to hear work is underway in a single online portal for receiving and tracking request. great, harness the net save time and frustration but i think we can agree to that. number four, far more important than technology is most, rein in the statutory exemptions. that is primarily the most important thing we can do

because exemptions are being used today to end run the foia. crippling the law. over the years we appreciate pushback on exceptions, most recently with the farm bill but when you do know the application. particularly with b3. we need sunsets, we need a public interest balancing test i could ms. bennett said. we need to require exemptions go through the judiciary committee for review. of course, there are many other ways we can make beneficial changes to foia, and i know my colleagues next they will provide more ideas but i think a final thought i would like to leave you is this. we are undergoing a climate change in this nation with our transparency. and unless we take action now, i think we can forecast a future shrouded by clouds, darkness and secrecy. i thank you for the opportunity to store and look forward to answering your questions. thank you. >> professor metcalfe.

[inaudible] >> try that again. good morning, mr. chairman members of the committee. as someone who's worked for the freedom of information act for no more than 35 years, i am very pleased to be here this morning to provide an academic perspective on the act and its governmentwide administration. my own use today are rooted in my work at american university's washington college of law in recent years where i teach courses in government information law and direct the collaboration on government secrecy, or cgs. in addition to maintaining an extensive website as an academic resource for all who are interested in government secrecy and conspiracy that's two sides of the same coin cgs has conducted an extensive series of a long programs on the subject with particularly heavy focus on foia and most recently on the obama administration's implementation of it. next week we'll hold our 24th of such academic program. our annual celebration of freedom of information day and i'm pleased to note that this committee chairman has twice

participate in them. this academic perspective is also informed by decades of experience in leading the government of the department of justice, then the office of information and privacy now called the office of information policy, that discharge of the attorney general's responsibly to guide agency of the executive branch on the complexities of the foia's administration. i know firsthand the challenges involved. including new policy conformity by all agencies. simply put i had been there done that through several presidential administrations. time and again. so it is through the lens i do the many ways in which the openness of government community has been disappointed greatly disappointed by the surprising and adequacies of the abominate ministrations application of new foia policy, especially the key standard of foreseeable harm what has now been the past five years. this began with a memorandum

itself. contrary to all expectations and despite the president is done is by jan urbina, the memoranda not by its term applied its new foreseeable harms a standard to all pending litigation cases where it could have had an immediate highly consequential impact. rather it can take a long time -- insulate cases from it. as one of the speakers at the cgs working at a conference put it, the foia request and it still wouldn't see a list of any litigation case in which the foreseeable harms a standard has been applied to yield greater disclosure. after all, these years now, not with any which were this one there's a strong suspicion that there are few or even perhaps no such cases. that's the best possible opportunity to press for full adoption and use of the standard throughout the executive branch in a concrete exemplary fashion has been lost. perhaps i should note parenthetically hear that the bipartisan foia amendment bill passed by the house two weeks

ago, h.r. 1211, was mentioned by senator grassley contains a provision that would codify the foreseeable harms standard as a matter of law. that's something i address at great length in my written statement and i which is in its of time skip over that now. it should be a matter of concern for more than one reason to the fact that the department of justice on foia backlog has been allowed to worsen over the past three years is bad enough for its own foia request is. but when the lead government agency for the foia fails so badly to reduce its own backlog it makes it much harder for it to press other agencies to dutifully complied. this do as i say not as acute problem is accessible the fact ofthe departments high visibility leadership offices saw the own numbers of pending by request

increase rather than decrease over the same period by an aggregate figure of 3.95% but this makes it impossible to lead by example. turning to the foia exemptions, i'lli mentioned the one that continues to cry out for a meet attention is exemption cheaper that's because the supreme court is a that was issued three years ago that basically exist rated exemption to leaving information within the government without an exception that applies. i think it's fair to say that there's no reason the question that remedial legislation is needed and as center grounds asked that question two years ago, it's irresponsible for the executive branch not to have proposed amendment of exemption two since that time. in sum, there is certainly much reason kashmir over the past five years to put it mildly and

this was a brief recitation here today does not even take the time to consider in depth other divisions is just going fact that most federal agencies especially and again inexplicably the department of justice have not updated their vital foia revelation for many years not even the required to do so put aside the holder a memorandum in 2000 recorded do so by the 2007 foia nimitz nor does it include the fact that it had an academic study by cgs lesson have the exemption three statutes you the agencies actually qualify under that exemption. in conclusion, i surely appreciate the committee's efforts today as in the past, in the words of today's hearing titled read a great the foia for the digital age but i did say that what now appears to be needed much to everyone's great disappointment and surprise, the sustained attention of a series remedial nature. thank you for the opportunity to testify today, and i look forward to answering your

questions. >> thank you. thank you to all of you. thank you, professor metcalfe. start with ms. bennett. you've heard the government's testimony today. the you agree with that assessment, agency compliance with foia? >> i would sorely disagree that there has been robust efforts to element of the foia and that things are going particularly well. i think that my organization believes that the department of justice when they issue their annual report card generally act more as a cheerleader for how agencies are doing. and i think to make agencies really pay attention to processing foia the way that they should be, and begin to really make a difference for requesters, we need to start calling agencies out on what they are doing wrong. so we hope that the department of justice takes a more

wholesome look at not just where things are going well but where things are going poorly. >> let me ask you, where are things going poorly? and what are your priority areas for reform? >> sure. i think that certainly the use of exemption five as i talked about in my testimony is a problem that we've seen over and over again. i know that the department of justice said you can't really use that statistic because it depends on what's been requested, and they certainly is that statistic when it's in their favor. so we think that it is telling and it is important especially if you're looking at it over time comparing year-to-year. so putting some tighter boundaries around how that exemption is used is one of our number one priorities. >> thank you. dr. cuillier, we know that foia has for over 40 years been instrumental to the press and to

its role in our democracy. by the same token we know that the foia system remains far from perfect. in your opinion what are the most pressing problems that representatives of the news media face in navigating foia system? >> exemptions, hands down. it's agencies figure out how to avoid giving out information they don't want out. and when journals are requesting information it's defined something the press and agency doesn't want the public to know so they will figure it anyway to game the system. that is huge frustration, in addition to delays and delays and delays which is essentially the nile to a journalist. that's what's happening today. it's not even just foia. we are talking about a big trend in all forms of information control, excessive p5 all controls of the federal agencies, state and local government. it's everywhere and this trend has been going on for 40 years.

the research is supported. the body of evidence. there may be focuses that say otherwise but it's just not supported overall big turn. i sound like a climate change scientists from the 1980s, but i'm telling you something is amiss and unless we do pushback against it, it's going to be pretty bad. >> professor metcalfe, in your testimony you talked about the exemptions. do you agree with the other two witnesses? [inaudible] -- there are service problems. if you want to have a list to focus in priority fashion, i would suggest six things in total. one, that there needs to be focused on the limitation of the foreseeable harms stand which by the way is if a specific concrete thing but that's how we implement it in the clinton administration, not with some more for storm such as presumption of openness which doesn't mean that much to our foia and was in the trenches. second backlog reduction which

i discuss in great detail in my testimony, the department of justice's backlog has increased. the open government directive in december 2009 mandated all agencies with a significant backlog to reduce the backlog by 10% per year since then. that hasn't happened governmentwide. there's been an increase. it hasn't happened within the department of justice in particular. there's been an increase. it hasn't happened in the three top leadership offices of department ag debbie and associates officer there's been an increase. thirdly, exemption number two, i don't think there's any reasonable dispute that remedial legislation is needed there, and as i say in my written testimony, it's unfathomable to me why that has not happened. i'm not casting dispersion of the work of the committee because the tradition, so when i filed, thoughtful and 25 years in leaving that office was at the executive branch from justice and omb, took the initiative in proposing

legislation, but it hasn't happened to no one knows why. fourth regulations. as i mentioned earlier, regulations may not be legally required to implement the holder memorandum but when we issued the one that i wrote for janet reno in october of 93, we codified, those be that standard in our regulations and other agencies did as well. that's good policy good practice to do so. it's inexplicable why that hasn't happened. fifth, exemption number three but has indicated in my written testimony, there's a strong potential for one or the other committee on the hill. this committee or the counter committee on on the house, to look at the academic groundwork we've done at my secrets is it because we found that barely half of them were 300 exemption three statutes reported as used by federal agencies actually qualified as exemption three

statutes when you look at it carefully. and six is something you of our discussed which is ogis. i know that you're very focused on that as well. spent thank you all and i apologize by have to go to a vote so we will have two clothes they hearing. i want to thank all the. i want to thank the chairman and the ranking member and again each of you. will hold the record open for one week for submission of questions for the witnesses and other materials. they hearing is adjourned. thank you. [inaudible conversations] [inaudible conversations]

>> i think what happens december as the depression deepens, people did know it was the great depression on day one, they thought it was probably a typical cyclical event. but when the pattern did not hold and when the depression deepened, hoover then found himself facing increasing pressure from the left for greater and greater expenditure, greater intervention in the economy. he started to hold the line against that and became very much a fiscal conservative balance the budget, say the gold standard republican in the last year or two of his life and that perceived rigidity on his part is part of the reason that he got attacked as supposedly not doing anything. he was quite activist for his time come including some policies that might not have been all that effective. on the other hand, he was

valiantly struggling against a total statist turn such as you saw coming in the new deal. >> george nash on the missing link in herbert hoover's memoir. saturday night at 10 eastern and sunday at nine on "after words." and in a few weeks military strategist and former assistant defense secretary will take your calls, comments, e-mails and tweets on the mideast and the wars in iraq and afghanistan live from noon to three eastern on c-span booktv. this month on booktv's book club, joined the discussion on peniel joseph new biography on stokely carmichael. >> and now to line -- to linda for british by mrs. question time. -- now live to london for british house of commons question time. we also invite your participation via twitter using

the hashtag pmq. proud to question time members are finishing up other business. now live to the floor of the british house of commons. is my stand in for primus or david cameron, is deputy prime ministers nick clegg. ..