i will note it highlights transparency in the management transparency in the management of request. captions copyright national cable satellite corp. 2008 captioning performed by vitac >> i'm quoting, one can imagine the difficulty journalists or ordinary citizens face in submitting requests to foia offices that cannot or will not provide basic information to a congressional committee that exercises jurisdiction over foia about its efforts to manage and track requests. it did not escape senator cornyn's notice that the department of justice received a grade of a d, as in dog, in part because doj only provided logs

for three of its 40 components. on a related note, senator cornyn will continue to insist the top three leadership offices in the dauj of justice, that's the attorney general, the dags office and associate attorney general's office improve their track record with processing foia questions and set a better example within the department and for all federal agencies. as dan metcalfe and others have observed, from fy-10 to fy-11 the bag log in doj's top three leadership offices increased by over 35%. and in the associates' office especially, and we're talking about the department's chief foia office here, the bag log from fy-10 to fy-11 ne 1 nearly doubled. these statistics are cause for concern especially because of the message we believe it sends

to other agencies and components throughout the federal government. apart from these reports on back logs and tracking, we'll also be looking at the creation of new exemptions, as lydia mentioned, and the competing versions of cyber security legislation the senate may take up this year. earlier this year we were copied on a letter from coalition of open government organizations led by patrice mcdermott, which detailed their concerns with sections 102 and 105 of the secure it act. we'll be taking a close look at that. the judiciary committee took testimony on this issue, particularly in the context of the millnard decision as lydia mentioned recalli iearlier this. i'll stop there and answer your questions at the appropriate time. >> let's move right along. >> first i'd like to thank dan

metcalfe for inviting me to speak. i'm excited to be here. again, this is my first time at this event but chairman isa is very interested in open government and transparency and we actually have quite a few foia projects that we've been working on. one is our foia scorecard on government agencies. last year we requested foia logs from every government agency. most of them i'm glad to say were very responsive. they produced the records that we requested and the logs had the information that we were looking for. the logs were -- they were graded based on five things. they were graded based on the name of the requester, the subject matter, the status of the request, the final disposition and -- i'm south carolina i'm blanking on the last one. >> format.

>> yes, the format. because a lot of them were unable to produce electronic copies. sometimes we got hard copies only. sometimes we got heavily redacted pdf formats that were not searchable. so many agencies were not tracking key information. some of them were missing tracking information. the tracking number that's legally required to be put on foia requests that are open more than ten days. some agencies did very well. some departments did very well. the treasury department, we were impressed they were actually using consistent formats across all of their components, which was something that was very rare. many agencies were producing ten or 15 logs for their components and they were all completely different formats. that's something that we were looking at as well, all though we graded each log based on its individual information.

another report we are working on is an update to the citizens guide to the freedom of information act and the privacy act. that report, as many of you know, has not been updated since 2005. it's a report from our committee that's been released every two or three years since 1977 and it gives people information on how to use the foia and privacy act. we felt that it was very important to update it given the significant changes in foia that have happened with the open government act of 2007, so there are some new sections in there. we added a section on the office of government information services because we feel that's a very valuable resource for requesters and that's something that we would like to shed light on because there are a lot of people who seem unaware of that agency and are not taking advantage of their services. that's something that we wanted to encourage. we also added clarifications on

who is eligible for fee waivers and what fee waivers they may receive. one change under the open government act is that if a request is not processed within the time limits, you cannot collect search and duplication fees for certain times of requesters. that's something i think many requesters are not aware of and we wanted to shed light on that issue, too. there are some important updates in the fee categories. we are in the process of releasing that. we're hoping that in the next several weeks that is something that we will have a committee meeting on and that will be available to the public. also next week we are having our foia hearing. the house is actually in recess this week so unfortunately we do not get to participate in the sunshine week activities but i guess we're starting off the year well in making foia a year-long thing. our hearing is entitled using

foia in the 21st century. i think it's going to be a very exciting hearing. marianne nesbit will testify about work foia is doing including with the epa and department of commerce, which we're very interested in, which would allow requesters to submit their requests to multiple agencies at a single portal and then also this is what is most exciting for suss that they would be able to see previously requested and released material. so that would be a source for them to see what other agencies have produced in response to other foias.wehink that's a ver tool to the public and something the agencies should be doing more of. it's a requirement under the electronic foia act of 1996. a lot of agencies are doing a good job in meeting that but some agencies, frankly, are not posting all of the records that they should be on their online reading rooms.

one problem is that e-foia specifies frequently requested records must be posed but there's no definition of frequent. so some agencies comply to doj's guidance with a rule of three and others do not. there's no real consistent format. that's something we would like to recommend agencies do more of, pro active disclosure and more electron being information posted on their reading rooms. and then finally one thing that i also wanted to mention was some staff training that we are working on providing for house staffers who are in personal offices who deal a lot with constituent inquiries. we get a lot of inquiries from foia requesters who are having trouble with agency, who do know how to make a foia request.

a lot of people are unfamiliar with all of the basics of the foia law. it's not necessarily a basic law, it can be comprehensive. we would like to better inform the public and the house offices that are handling foia requests with constituent services so that they are better served and they're getting access to the data they need. so in closing i'll mention one thing that we're working with the minority on, which is a gao foia per expectus. gao is going to be looking in agency foia compliance. one of the aims of that is to see how well agencies are enacting eric holder's memo on government openness and transparency. we also asked them to look into compliance with e-foia and pro active disclosure and we also asked them to look at the accuracy and usefulness of data

c contained on foia.gov, it's a new web site on foia where can you go and get reporting information from past requests. that's something what we should have the results of this summer and we will be following up with agencies then. >> excellent. christa. >> i appreciate the opportunity to be here. one this evening i really like about this panel is that it is bicameral and bipartisan. as everyone else has moniesed, this is a great issue because it is bipartisan access to information is not a partisan or political issue but it's the right of the american public and it's our jobs as the staffers who work on foia and other open government issues to ensure that right is protected. one of the primary roles that the house oversight committee and the senate judiciary committee play as others have mentioned is to defend against attacks on foia through new statuary exemptions.

there seems to be a never ending stream of attempts by agencies and industry to limit the scope of foia through statuary exemptiexe -- statutory exemption. we saw as lydia mentioned the first post milner exemption enacted as part of the defense -- that provide as good example of how committees with jurisdiction can work to the with open government advocates to at least limb the the scope, or the damage so to speak, of statutory exemptions. the defense authorization bill initially included language that would have exempted department of defense critical infrastructure information. the bill did not even con it and a definition of the term critical infrastructure information. when we hed dod what the exemption was intended to cover, they said it was a direct response to milner and the was in that was at issue in milner

but the exemption that was proposed was far broader than that. when the bill went to the house floor, congresswoman suggested to define the term critical infrastructure security information and also by adding a public interest balancing test. in order to use the exemption, the secretary of dod has to determine in writing that the information is dod critical infrastructure security information and that the interest in preventing the disclosure of the was in outweighs the public interest in disclosing the information. the maloney amendment passed the house and senator leahy was a great champion in the senate and so with the work of both sides, the language was enacted as part of the final bill. i think now the next step is seeing how the department of

defense uses this new authority and ensuring that it is not abused but it is used responsibly and that the intend is followed and that the steps that are required, that two-step test, is met when the exemption is used. one thing is note is that the efforts of open government groups were critical in supporting the evident to limit the scope of that exemption and that's something i would ask as a staffer is that, you know, folks who follow these issues let us know when you hear about exemptions because we don't always know and, you know, the committees that are trying to get through a bill are focused on the other parts of their bill, they usually are responding to a request from an agency or from industry and they aren't focused on the foia part of it. that's not what they handle. and so they're moving through their bill without really thinking about reaching out to us or perhaps purposefully not reaching out to us and so unless we are alerted to the language,

we can't possibly read every bill. we try to do our best but we can't. so when you hear about these exemptions, if you could please let us know so that we can do our best to ensure something isn't go through that's inappropriate. sometimes they are unnecessary period and we can successfully push back and get them taken out of a bill. sometimes like in the defense authorization bill there is a real need to protect certain information but it can be done in a more narrowly tailored way. when i was here last year, i talked about a bill that oversight committee ranking member cummings introduced during sunshine week last year, hr-1144 the transparency and openness in government act. the bill includes five transparency bills that passed the house last congress and i'm pleased to say that this year i can report that four out of the five titles of that bill have been moved through the oversight committee either as stand alone legislation or as part of other bills. one in particular that i want to

highlight is the federal advisory committee act amendments. this would close loopholes in the federal advisory committee act to ensure more information about federal government advise ri advisory panels is made public by federal agents. right now advisory panels can create subcommittees and the subcommittees are not subject to faca. so agencies can avoid faca by doing the work of the committees through subcommittees. this bill would close that loophole. the bill passed -- was approved by the oversight committee. now it's awaiting action on the house floor. we are very hopeful that will happen. that bill is an example of how other open government laws can be complementary to foia because by pro actively disclosing information requiring agencies to put out information, it reduces the need for requesters

to to use foia because they can access the information more readily. from our members' perspective, we're hoping to hear how agencies are doing in implementing foia. omb watch came out with a report that's interesting showing some of the things the administration is doing well and some of the challenges that remain. that's something i think we need to explore is the areas where things can be improved. and it's helpful to get a sense -- it's helpful to hear from those outside of government to hear how things are really going. you know, it's difficult for us where we sit. tegan in her former life has been a foia requester. i've come into the foia world through my staff position. i don't have the perspective others have when you're using it to know how things are going.

it's helpful to us to hear from others how things are going in the real world. that helps us do our jobs better. and congressional oversight can be a very powerful tool and sometimes merely picking up the phone and calling an agency and asking about something can go a long way. thank you again. [ applause ] while you're thinking about questions, hope you're thinking of plenty of them because we've got time and we've got expertise here galore, i have two quick once i want to pose. the first really is let me just pick on tegan a moment. your report that came out yesterday identifies some agencies as no responding. the department of commerce not answering a letter, for example.

i understand that those who got low grades this will call them out, but for those who didn't respond, what is the committee chairman going to do about it? i mean, there's got to be a next step because we all have had that experience with agencies not responding to us when we request was in or when we write letters. but when an important committee chair with oversight authority in this area gets dissed by the agency, what happens next? >> actually, the agency we cited, the department of commerce, did respond. they just did not give us logs. they sent as you letter explaining their foia program and giving us the statistics that are in their annual foia reports. our concern is that without their underlying information, we don't know if the information they're reporting in their annual logs is correct. so one thing that we are going to be doing going forward is focusing specifically on agencies that either could not

or would not comply with our requests. clearly more oversight is needed in order to have accessible data. i think that asking agencies to produce foia logs should not be of reach. in a is somethi that is something they should be able to produce. there is a lot of technology available to help them in processing the requests. of them did. many agency, especially the smaller ones, complied with our requests. we will be following up with the agencies that did not respond in getting that information. >> i'm glad to hear that. to any of the panelists, i think no one who has been involved in the freedom of information efforts for at least 30 years

fails to see the complexity, challenge and importance of delay. the senate has passed this bill twice. bipartisan. even dr. no, senator coburn who refuses to allow them to establish any new boards, commissions or agencies went along with this. why doesn't the house pass this? speculation is okay, too. krista is reaching for the -- please, somebody. >> technically the house did pass it but it didn't include the language of the bill. >> we did pass it. it's just the language. one concern that we have is that most of the problems with foia have been problems since the existence of the law. there's agencies stone walling, there's excessive fees.

in fact, there's actually a list on the national security archive of findings from a 1974 oversight hearing that have the exact same issues that they have now. and i think that one of our concerns is that we want to get a lot more information about what is going on in these agencies before we pass legislation, which is one of the reasons why we are doing a lot of work with gao and we're doing a lot of background research from a starting point to see what exactly is causing these delays. for instance, there's a lot of referrals that are going on. and i think we are very interested in considering legislation, but we would prefer to get this information from an oversight and research view instead of legislation and then pass legislation to fix those issues in the future. >> perhaps we'll have some other observations on that, but if we don't, i'll come back to that subject. i think you were -- let's start

with the lady on the left and then we'll just go right and left. >> sure. hi. is this on? i'm cindy kafaro. this is mostly for tegan. thank you all very much for being here. it's really incredibly valuable for us to have your insights. as for chairman isa's report, which came out yesterday, i'm sure that the grades were very carefully thought out and a lot of consideration went into them. one thing that was a bit of a surprise to some of us looking at the grades that was particularly in the lower levels, it appeared that perhaps to us who hadn't seen all the information, it appeared there were some agencies who were at the same very bad level who had made very different responses. some agencies hadn't responded at all thatnded up with an f and there were some that had responded but in the wrong format. it seemed a little surprising that those would be sins of the

same level, if that makes sense. so certainly not asking you to go into detail about all of the very hard work i'm sure you all did on that but it would be form and function of course form and things and the form is very important, but it would be wonderful perhaps if it it was possible to distinguish between the agencihaable and have provided the information, they just didn't quite get it right as to the form and the agencies that just aren't trying at all. it's more of a comment than anything else. we appreciate the thought you're putting into this. it's our pet area and whenever congress is paying attention to it, it's very helpful to all of us. >> well, thank you. we went through the methodology in the report. our original request asked them to produce it in electronic format and that is something the

agencies should be redible able to do. we did note in the report the agencies that produced logs and agencies that did not. but that is certainly something ersit.e will take into >> thank you. >> yes, ma'am. >> hi. director of the open government project at the electron being privacy information center. miss griggsby, i know you spoke about the doj foia regulars. sort of the most press worthy ish there was they were going to simply deny the existence of documents, but those regs aside from that, even if the doj is to back off of that position, the regs were just bad overall. they made it much more difficult for requesters to obtain fee statuses, to get expedited processing and just made it more difficult for requesters to make requests in general. so we haven't seen anything else come out of the doj about this. i was wondering what the status of that is, whether or not they

plan on addressing some of those other issues. >> okay, thank you. the justice department is probably the best place to answer your question. i can tell you that the issue with the exclusions that have come up at our hearing and we of course asked about that hand what we were told is that the regulation is being finalized and we would get more information from the department about that. i haven't seen the other regs. there were a number of issues and concerns that many in the requester community had and the chairman had as well. we'll be looking to see what they come up with. i have no further insight on that at this point. >> it's particularly problematic to us because the department of justice is supposed to set the example for the rest of the agencies. for them to have such repressive foia regulation, it's just very problematic and sets a very bad example. it's just something we would want to call your attention to. >> thank you for your comment. >> not a particularly good

example when only 3 out of 40 subagencies responded to congressman isa's inquiry as well. but they're batting a pretty low percentage today. >> thank you. >> sue long. >> i have another question regarding the logs and i apologize because i didn't see the report that came out yesterday. i was traveling down here. as to the actual logs themselves that you got the case-by-case information, has the committee taken -- made any decisions about whether or not that's considered something that they feel they can release? or is it considered proprietary? >> that's something that we are still deciding. many of the logs that were produced contain very confidential information, including addresses, personal names. one concern was that we did not

want to dissuade people from making foia requests because, you know, the information might be available. i think a lot of the logs are already available online. i know the government attic did an identical request to ours and posted the logs that they received online, which i actually think is very useful because as a citizen and not as congress, the logs should be properly exempted, all the privacy concerns should have been taken care of before they were released. but i think that that's something that we are still considering, given that many of the agencies have a lot of very private information in those and we don't want to compromise that. >> i think it would be -- actually, it's somewhat difficult to even find out what fields of information they

track. and so, in fact, having -- and maybe that was in the report -- a more detailed description of of the contents of logs and, you know, what a field means because we have in fact had some difficulty in obtaining just descriptive information. >> that's something that we have gone into in the report. there's very wide discrepancy between what agencies are tracking and in what format. but whatever possible, we did call out specific agencies and specific logs with the information. i think that we would not be against putting out even more detail and possibly putting out what was contained in the logs without the information that's in them so that you could get more information. one of the problems, though, is that a lot of the spread sheets had a lot of fields that were just blank.

there are some agencies that had separate sections in their excel spreadsheets to are list exemptions and whether record were granted and they were just blank for all of the requests. so one problem is that if we give that information, it's very nice misleading. just because they have that in the log doesn't mean they're putting the data in when they should be. >> information about empty fields also very valuable. >> steve winters, local researcher. i'd like to ask a question about the response in congress to perhaps a widely spread public perception. every time i go to a conference about cyber security and u.s. government, the whole wikileak incidents is still on the table. the edited video commented that was released by