about because some of the magic language was in there and we found it. and senator leahy worked with a number of other members to narrowly craft that exemption to address concerns about access to health and safety information, which is particularly important to many americans, and to set i think a very good precedent for how congress can deal with issues like this after the miller decision in terms of allowing the government to protect clearly sensitive information but also keeping in mind other interests that the public has in terms of having access to information. so i think overall we're very pleased that that exemption became the law of the land. i think it sets a very good precedent for how congress moving forward can look at these issues and we certainly hope it helps to open up the process of again making sure the public has access to truly important information when it comes to protecting health and safety. congress is also very, very busy these days looking at cyber security issues, which is another important issue and very important area where a number of

issues are coming to light and one that recently has come to light is issues related again to access to information and foia. the chairman held a hearing earlier this week which in part analyzed some of the proposals to create new exemptions to foia for information related to cyber security threats. it's a very interesting issue, a very difficult issue, one i think the senate judiciary committee in particular is very uniquely positioned to really add in a positive way to the debate. so we will be very busy, i'm sure, over the next weeks and months examining some of the proposals to exempt information under foia and hopefully working with other members working on that legislation to make sure that again the public's right to know is protected in this area. i can just think of the many years i've been here since september 11th. there's obviously been a big push toward national security and secrecy, and that's something that senator leahy has expressed a concern about the pendulum kind of going too far. and again, i think he called for the congress again on tuesday to

look at these issues and to keep in mind public access to information issues as we look at what really needs to be secret to make sure we're calibrating that issue correctly. and i hope that congress will do that as we work forward with these important initiatives like national security and cyber security legislation. i mentioned the hearing we had last tuesday, this past tuesday. our committee remains very active in terms of oversight on foia. some of that is through our oversight hearings that we have. but we also do a lot of things that are kind of behind the scenes that aren't always in the press releases like i mentioned earlier but are very important to account for the day-to-day ability of people to use foia. one thing the chairman did was work very well with the justice department in addressing concerns about a new foia reg that some of you may have heard about that dealt with dpchfoia exclusions and there was some concern over how the government would respond to those requests in particular because the requests could be seen as misleading. through the efforts of our

committee and the department of justice the department of justice revisited that issue and has reversed course and is hopefully working to announce very soon a new regulation which i think will be more consistent with transparency and open government. the chairman has also been very active in calling for transparency outside of foia. he has called obviously for government to proactively the obama administration has done a lot of wonderful initiatives putting more information out online that he continues to push agencies to do even more of that. he really believes that, you know, foia is one tool but not accessing information. so he remains very active in his oversight role in terms of encouraging kind of proactive disclosures. so i think that's a general overview of what we're doing. i guess my general theme would be again that this is something that he has done for three decades and as tom mentioned and i'm sure you'll hear as you hear from the rest of the panel, this is a bipartisan issue, something we have worked extremely well on over many, many years, it's an area where members understand

this is really truly an american value in terms of open government and so it is an area where we have been very productive, fortunately, from year to year. thank you. >> before we go on, you just had hearings earlier this week. give us a little bit of a -- for those of us who couldn't get up to capitol hill and tune in. any good ideas? any news come out of those? >> there was quite a bit of news. i think the news from our perspective was again renewing the debate about access to security issues. that is something the chairman always has encouraged, something that again as i mentioned the pendulum goes back and forth. it certainly needs to have government secrecy when you're talking about national securitye are other issues to consider and congress should do that. we had a lot of discussion about the milner case which i know a lot of people are thinking about

and how government agencies will respond to requests for critical infrastructure and other information that historically fell under the so-called high two exemptions to foia i think those are issues that congress is considering. we heard recommendations from the justice department about one approach to addressing that and i think we will see a continued debate about that. obviously, what we are witnessing now are the exemptions through exemption 3 where there are separate proposals coming out. and there are some challenges with that because of course we don't always spot them right away and of course different agencies have different views. but i think the headline is that congress has focused now on these issues and looking at a holistic approach to it and i think drawing attention to many members across the congress who may not focus on foia issues as to how this issue can interplay with other legislation. >> great. matt. >> thank you, tom. thank you, lidia, and my fellow

panelists. since this panel is apparently being recorded on c-span, i'll borrow a line from former senator specter, who often opened congressional hearings by welcoming in all of the insomniacs who are watching on the 2:00 a.m. rebroadcast. so welcome to the insomniacs. on behalf of senator cornyn i first want to also acknowledge the strong bipartisan partnership that chairman leahy and senator cornyn have forged on open government issues over the years and their record of bipartisan achievement. that strong working relationship extends to many in the requester community. many of you are here today. to keep us informed of developments and trends. without these partnerships and good working relationships built by senators cornyn and leahy, the open government act and

follow-on legislation could not have been possible. since he arrived in the senate almost a decade ago, senator cornyn has been laser focused on accountability in terms of timely net and responsiveness, but also in terms of overall customer satisfaction when it comes to requesting and receiving information from the federal government. senator cornyn's commitment to open government issues dates to his service as attorney general of texas, where he presided over freedom of information policy and worked aggressively to make texas one of the most open state governments in the nation. i'd be remiss if i didn't mention that texas was ranked first among the 50 states in terms of transparency of government spending in a recently released report by the u.s. public research interest group. on behalf of senator cornyn i would commend the oversight work in the foia space done by

chairman issa and the house government reform and oversight committee. this includes the march 30th, 2011 report on dhs political staff interference with foia requests and the agency report card that was released just yesterday. you'll hear from her next. so i don't want to steal tegan's thunder regarding the just released agency report card, which i assume she will want to discuss at length. but i will note that it highlights the importance of accountability and transparency in the management of requests, which is something that is at the heart of the leahy-cornyn open government act of 2007.

that exercises jurisdiction over foia about its efforts to manage and track requests. tegan can elaborate on this, but it did not escape senator cornyn's notice that the department of justice received a grade of d, as in dog, in part because doj only provided logs for 30 of its -- i'm sorry, three of its 40 components. on a related note senator cornyn will continue to insist that the top three leadership offices in the department of justice, that's the attorney general, the dags office and the associate attorney general office, improved their track record with processing in foia requests and set a better example within the department and for all federal agencies. as dan metcalfe and others have observed, from fy10 to fy11, the

backlog in doj's three top leadership offices increased by over 35%. and in the associate's office specifically, and we're talking about the department's chief foia officer here, the backlog from fy10 to fy11 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 backlogs and tracking we'll also be looking at the creation of new exemptions. as lidia mentioned in the competing versions of cyber security legislation that the senate may take up this year. earlier this week we were copied on a letter from a coalition of open government organizations led by patrice mcdermott and openthegovernment.org which detailed their concerns with sections 102 and 105 of the secure i.t. act. so we'll be taking a close look at that.

the judiciary committee took testimony on this issue, particularly in the context of the milner decision, as lidia mentioned, earlier this week. i'll stop there and welcome your questions at the appropriate time. >> moving right along. >> first i would like to thank da i'm excited to be here. again, this is my first time at this event. but chairman issa 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 graced based on the name of the requester, the subject matter, the status of the request, the final disposition, and -- sorry. i'm blanking on the last one. >> the format. >> yes, the stormate. 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 that they were

actually using consistent formats across all of their components, which was something that was very rare. many agencies were producing 10 or 15 logs for their components, and they were all completely different formats, and that's something we were looking at as well, although we graded each log based on its individual information. another report that we are working on is an update to the citizen's guide fought 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. it gives people information on how to use foia and privacy act. we felt it was very important to update it given the significant changes in foia that happened with the open government act in

2007. there are some new sections in there. we add a section on the office of government information services because we feel that's a very valid resource for requesters and that's something we would like to shed light on because there are a lot of people who aware of that issue and are not talking advantage of services. we also added clarifications on who is eligible for fee waivers and what kind of fee waivers they may receive. one change in the open government act is that if a request is not processed in the time limits you cannot collect duplicate requests from the requesters. that's something many requesters are not aware of. we wanted to shed light on that, too. there are some important updates in the fee categories. we are in the process of releasing that. we hope in the next several weeks that is something we will

have 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 next week. unfortunately we did not get to participate in the sunshine week activities. i guess we're starting off the year well and making foia a year-long thing now. our hearing sen titled "foia in the 21st century: using technology to improve transparency in government." and i think it's going to be a very exciting hearing miriam nesbitt will be testifying about work they're doing including work with the foia module with the epa and the department of commerce which we're very interested in which would allow requesters to submit their request to multiple agencies in a single portal. also what's interesting to us is they would be able to see previously requested and released material. that would be a source for them

to see what other agencies have produced in other response to other foias. and we think that's a very valuable 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 are not frankly posting all the records they should be on their online meeting rooms. one problem is e-foia specifies frequently requested records must be posted but there's no definition of frequent. there's no consistent format. in the future that's something that we would like to recommend agencies do more proactive disclosure and more electronic information posted on their reading rooms. 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 a situation they deal a lot with constituent inquiries. we get a lot of inquiries from -- a lot of people are unfamiliar with all of the basics of the foia law, although i wouldn't say it's necessarily a basic law. it can be very comprehensive. but we would like to better inform both the public and the agency -- the house offices that are handling foia requests with constituent services so they are better served and 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 prospectus. gao is going to be looking into some agency foia compliance.

one of the aims of that is to see how well agencies are enact ing eric holder's memo on government openness and transparency. we also asked him to look into e-foia and proactive disclosure. we also asked him to look at the accuracy and usefulness of data contained on foia.gov which is the department of justice's new -- well, it's about a year old now. new website on their foia where you can go and get reporting information from past requests. so that's something that we should have the results of this summer, and we will be following up with agencies then. >> excellent. krista. >> i appreciate the opportunity to be here. one thing i really like about this panel is that it is bicame bicameral and bipartisan. and as everyone else has mentioned, this is a great issue

because it is bipartisan. access to information is not a partisan or aissue. but it's the right of the american public. and it's our jobs as the staff who work on foia and other opent 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 statutory exemptions. there seems to be a neverending stream of attempts by agencies and industry to limit the scope of foia through statutory exemptions. i know the next panel plans to address exemption three and whether it is out of control. and when it comes to legislation, the answer is yes. we saw the first, as laid y. mentioned, the first post-milliner exemption enacted as part of the defense authorization act of 2012. and that exemption provides a good example of how the committees with jurisdiction can work together with open government advocates to at least limit 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 contain a definition of the term critical infrastructure information. when we heard from d.o.d. what the exemption was intended to cover, they said that it was a direct response to milner and the information 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 caroline maloney offered an amendment to narrow the scope of the exemption in two important ways. one was by defining the term department of defense critical infrastructure security information and also by adding a public interest balancing test. in order to use the exemption the secretary of d.o.d. has to determine in writing that the information is d.o.d. critical infrastructure security information and that the

interest in preventing the disclosure of the information 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. and i think now the next step is seeing how the department of defense uses this new authority, ensuring it is not abused but it is used responsibly and that the intent is followed and these steps that require that two-step test is met when the exemption is used. one thing to note is that the efforts of open government groups were critical in supporting the effort to limit the scope of that exemption. and that's something i would ask as a staffer, that folks who follow these issues let us know when you hear about exemptions because we don't always know and

the committees that are trying to get through a bill or focused on the other parts of their bishlgs they usually are responding to a request from an agency or from industry and they are focused on the foia part of it, that's not what they handle. so they're moving through their bill without really thinking about reaching out to us or perhaps purposely not reaching out to us. so unless we are alerted to the language we can't possibly read every bill. we try to do our best, but we can can't. so when you hear about these exemptions if you could please let us know so we can do our best to ensure that something isn't going through that's inappropriate. sometimes they're unnecessary, period. so we can successfully push back and get them taken out of the 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. the bill is 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 parts of other bills. one in particular i want to highlight is the federal advisory committee amendments. this bill would close loopholes in the federal advisory committee act to ensure more information about federal government advisory panels is made public by agencies. the bill closes one loophole, for example, that allows 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 committee through the subcommittees. and this bill would close that loophole by applying faca to

subcommittees. the bill passed, was approved by the oversight committee. now it's awaiting action on the. and that bill's an example of how open government laws can be complimentary to foia because by proactively disclosing information requiring agencies to put out information it reduces the need for requesters to use foia because they can access the information more readi readily. o'tegan mentioned the hearing the oversight committee is holding next week. we're looking forward to that hearing. i think from our members' perspective we're looking forward to hearing how agencies are doing in implementing foia. i know omb watch just came out with a report that's interesting showing some of the things where things can be improved. and it's helpful to hear from

those outside of government to hear how things are really going. it's difficult for us where we sit. i know tegan in her former life has been a foia requester. i've come into the work from my staff position. so i don't have the perspective others have when using it to know how things are going. are agencies being responsive? is it easy to track requests? it's helpful for us to hear from others how things are going in the real world. and that helps us do our jobs better. and congressional oversight can be a powerful tool and sometimes just picking up the phone and asking an agency can go a long way. thank you again. [ applause ] . >> who'll you're thinking about questions, i hope you're thinking of plenty of them because we've got time and we've got expertise here galore, i

have two quick ones that i want to pose. the first really is let me pick on tegan a moment as part of her induction into the congressional foia club. your report that came out yesterday identifies smagss as not responding, the department of commerce not answering a letter, for example. i understand that those who got low grades, we'll call them out, this will be a little public o'proep rieum, but for those who didn't respond what is the committee chairman going to do about it? there's got to a next step. we all have had that experience with agencies not responding to us when we request information or 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 you

cited, the department of defense, did respond, they did not send the logs explaining their foia policies and explaining the statistics. our concern is without the underlying information we don't know if the information they're reporting in their annual logs is correct. so one thing we are going to be doing going forward is focusing specifically on agencies that either could not or would not respond to our requests. clearly more oversight is needed in order to have more access able debat able data. there is a lot of information available to help them process these requests. there are data based they should be able to just print an excel spreadsheet from. many of them did. the majority of the agencies especially the smaller ones they complied with our requests. but with the agencies that didn't i think increased

oversight is certainly needed and we will be following up with the agencies that did not respond and getting that information. >> i'm glad to hear that. to any of the panelists, just one other -- faster foia. i think no one who has been involved in the freedom of information efforts for at least three 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 congress to establish any new commissions, boards, or agencies, went along with this one. why doesn't the house pass it? speculation's okay, too. krista's reaching for the --

please, somebody. >> i was going to say technically the house did pass it, they just didn't actually include the language of the bill. i had to throw that in. >> 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 stonewalling. there's excessive fees. in fact there's a list on the national security archives 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 led 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