taken more seriously. so, he said, okay. i immediately said, and how long do i have to file that, your honor? and he gave me some time. now, in the first case, he, in fact, did not allow us to undertake the discovery. but you know what he did? he undertook the discovery, and he interrogated the government. and guess what? what they claimed wasn't true. okay? and we were successful. okay? that's amazing. that's not the kind of thing you necessarily see today. the second thing that was so amazing was the justice department didn't appeal. wow! now, we didn't realize that this was important, but the justice department appeals, they can stretch it out ten years. that's nothing.

so, if you want records in anything besides an historical researcher, you know, there was no freedom of information act. they didn't appeal. amazing. so, irs had to produce those. wow. they weren't, you know, terribly happy about it. and there were a few problems. they did produce it. by that time that statistic, which were bound volumes back then, internal use only, old stats, we asked for the current copy. we went back and asked for the next one and it was exactly the same, you know, just a different year. there was no difference. we couldn't have it. we made another request for that and turned down. we could see this is going to take forever. so we scurried around and we found out after a lot of hard work lots of other names of

internal statistical documents of a much broader nature, filed another one, turned down. so then we filed suit. we appear in court and guess what? justice department attorney says, you know, your honor, i'm inclined to agree my client should turn it over. i said well -- you know, it was my turn. and i said well, you know, we have a problem here. are we each time we need a new one having to go through a court process and get a court order to get it? you know, this can't be the case. the judge peered at the justice department attorney and he said, you know -- i'm sure we can discuss that. and i immediately here on pro se. i don't know what i'm doing. i wrote out this proposed order requiring the release in the future of not just those named

documents -- i knew by then they just changed the name and numbers and suddenly the court order didn't mean anything, but any similar statistics, you know. and there was no time limit. this is forever. you know? guess what? the justice department attorney signed it. he didn't even change it. i didn't realize how astounding that was, you know. not only you would think he would have gotten his hand slapped. so the next time that came up when this more sweeping one came along, he signed it, too. and guess what? that is what is guaranteed access to us. we had to go back into court thanks to public citizen litigation group. i really have to stop and acknowledge the wonderful depth that when we -- in the more recent years the pro bono support that they have provided. and it's really so essential to

get legal assistance and others, as well, that have stepped up to be pro bono attorneys for us. absolutely critical. anyway, that's different. today, this does not happen. justice department in general -- we did a report and it is out there attracted, and regrettably, despite the really impressive words of president obama and the impressive words of our attorney general talking about not defending santiago si withholding unless -- unless it really was consistent with the purpose of foia, there was real harm potential there or that the law just didn't give them any discretion. it's not worth the paper its written on. absolutely no implementation. that's a really, really sad commentary about how things have changed.

today, both in terms of the way the court process works, the good thing is you can get attorney's fees. by the way, i also learned a new wrinkle to getting attorney's fees in the suit by public citizen, you know, to enforce that court order, there was an award of attorney's fees. the process is -- sort of the check is written to you and you sign it to the attorneys. guess what i got from the irs? i got a 1099 miscellaneous income this year for all those attorney fees on which i owe taxes. so, you know, the irs is having the last word here. this is not fun. let me tell you. looked like i won. not good. but anyway, it is wonderful to have attorney's fees. but the court process and the

critical nature of the justice department's role, which just is simply being the hired gun currently for whatever the agency wants to withhold, has created an environment, after 40 years with no real sanctions teaches disrespect for the law, teaches contempt for the law. and so after 40 years, you know, it's really sort of amazing that, in fact, there are federal officials that actually pay attention to the law, because there really is no real enforcement mechanism here in the law itself. if they really want to go to the mat and withhold something, then there are a lot of wonderful foia officers that i have dealt with, and it really can make a huge difference. but if it's against an entrenched agency they do that at real personal cost, because that's not the way to advance your career.

then there are other agencies and we tend to deal with law enforcement agencies. they are among the worst because they're sort of used to pushing people around. they are very powerful. why should they pay any attention to the law? it is just very dismal. so, that's kind of my 40 years ago and today. however, i have a vision of the future. and i think that, you know, it would be wonderful if congress wanted to pass, you know, real sanctions. you know, but i'm not going to bet on that. it hasn't happened in 40 years, i think it is very doubtful. i think the web and social media today provide an entirely new enforcement mechanism. and that's through, a, transparency and, b, public shame.

what would it be like if? what would it be like if every time a foia officer responded and reached a decision, whether that is the administrative or on appeal, and they reached a decision, it was instantly the correspondence and the response available on the web for all to see. number two, that these wonderful tracking databases from which these statistics that are somewhat questionable that everybody is bragging about what a good job in government they're doing in responding and giving all this information out, what happens if the case-by-case data for each of those cases were also public and the little check boxes along with general description of what was being asked for and, you know, how they responded was available for the public to see and to question, if, in fact, which has been our experience, that there

is a lot of inaccuracies to how that is made out to make them look better than the real realty? what would happen if any member of the public who had tried to get some information could upload why that information wasn't public if they wanted? their own youtube video to tell what the significance of this was either to them or to the public interest? so, it's available on the web. then you have this marvelous search engine which could find all of this stuff for you easily, whatever topic you wanted. so if you were thinking about making a request, you could go in and find what other people had asked for and how it was handled and compare and ideas about what records might be there that would be responsive to your request. and you could look at records and say, oh, look at there. every time they are doing this.

this is not good. and you had really hard facts behind it, or you could look at it and say region a, they respond this way, region b, same agency, they respond this way. they are 180 degrees apart. what would happen then? well, i predict that that really -- based on 40 years of experience when you are trying to get that record out -- it is not the lawsuit. you know how long that will take. you know, so you have to use these other mechanisms. and now we really have this possibility. so, a year ago david and i launched foiaproject.org. and it's on the web site. obviously, it is a huge ambitious thing to do everything that i described. we started with court decisions, so we update daily tracking all of the foia cases. we just added an upload

facility. haven't announced it. so hopefully people can -- particularly attorneys or requesters that are in litigation -- because we have to pay pacer fees. it's nontrivial. you can upload about current cases, pars cases. this is through the cs funds support. we asked for more money to extend that series. and we've got various search mechanisms. we're interested in, you know, suggestions on it. the more exciting news is we have just received funding to expand it to the administrative level. that's a huge area, obviously. but we're going to try it from two directions. one is an upload facility which is on beta form on our web site now so you can upload your requests, their responses, their commentary about it. secondly, we've gotten the

funding to sort of develop all the computer infrastructure, and in the funding to go after one agency and all of their database foia tracking database. actually how they handle each case. put that up on the web. we can look at analyses that way. >> we are wondering which agency was that? you said one agency. right? yes. guess what? >> which agency is that? >> immigration and customs enforcement we'll start. >> you made a lot of people in the audience less nervous. just for that clarification. >> however, we see the need to do that everywhere. and we see no reason -- and, indeed, if you've gotten good examples of agencies that are making this kind of class of

records available, agency a, i think, you know, we should celebrate that. agency b you know, they are not. how come? and indeed, you know, we are going to be reaching out, now that we've got this upload facility, and indeed asking, you know, government to provide their own commentary if they want to about anything. so the whole record is public. so that's my vision. thank you very much. [ applause ] >> we will take some questions from the audience. and i'm going to exercise my prerogative as the moderator, i suppose, to ask for one to start us off. and folks can come to the mics at the front of the aisle and each of the wo sidtwo sides of

auditorium. you mentioned congress, and i think you mentioned it with respect to your concern that congress would ever strengthen the sanctions provisions of phi foi ya. makes me wonder, going back over those four decades, congress has paid most attention to the foia in a ten-year cycle. '66 enactment, '74 amendment, maybe a little earlier because of watergate, '86 amendments, '96 amendments, 2007 amendments delayed one year because of the bush executive order, perhaps, and now congress has finally broken that psychle with at least one amendment in 2009. this you may take as a leading question perhaps putting it in lawyerly terms, but do you think congress has paid sufficient attention to the foia over the years or perhaps in the ten-year cycle congress may be looking at the foia to amend the act far more regularly? are you optimistic or pessimistic about that?

>> i'm agnostic. i don't think one should count on it. i would welcome it. i have also seen that all -- you know, many, many of the amendments, which were good intentioned agencies have been able to frustrate. so, in fact, all the tracking and so many days and all of the very liaison you can go to. if you are an agency that doesn't want -- that doesn't mean they don't supply anything, but there are things they don't want to supply. you know. it doesn't make a bit of difference. all that's happened really is government agencies used to be honest with you. they said no and they told you why. you know, that doesn't happen anymore. there's all this -- it's very much, and i know this is really a strong statement, but in my

earlier stages of my life, you department hired me to do studies on white-collar crime and cracking white collar crime. it has always been an interest of mine. in many respects, what we have is it has been so corrupted that we now have organized illegal operations within agencies that they are just really hard to tell the difference between some organized white-collar crime organizations and what is going on in some agencies with foia. and guess who their top gun, hired gun is? it's the doj attorneys that are defending all of that. so i'm not real optimistic. in fact, there were sanctions, as you recall, in the law, and my husband and i were the

second -- i believe, the second ever to get those sanctions invoked, the first step of it, where the court found the circumstances surrounding the withholding that raised questions whether they were arbitrary or capricious. it went to the civil service. we got the finding and that was the end of it. you know. i'm not -- but i'm agnostic. it would be wonderful. but, you know. >> if you are agnostic, you may pray for congress to pay more attention, would you not? >> you know, i mean, they can do a lot of damage, can't they? >> on that note, there is a gentleman on this side with a question, i believe. he's raised his hand and he's standing at the mic right now. >> hi. i'm paul ha hamshaw. in what format this database you are building of judicial

administrative -- are these pdf files or word files? >> you have to sort of take them the way they come. you can't insist on certain things. we make pdfs out of them. we make them fully searchable. we upload them to documentary cloud. we are trying to make it as widely public. working on indexing of it. i want to add more statistics to it once we get a longer thing. there is a lot of work behind the scenes that is required, as you all know if you look at what you get in pacer. you can't just find out what easily -- you know, here are all of the suits from the fbi. they are entered in so many different ways. and coming up with ways of doing this that is repeatable at the smallest margin as possible.

so you can do it, because we're updating daily. so right now, in terms of documents, we will make pdfs out of them. maybe they will be pdfs to begin with. does that -- >> fantastic. >> yeah. so, encourage anyone. >> question on this side of the room here. >> bly bryan hartwell. i'm wondering if you could talk more about the sanctions that you might like to see enforced. individual foia officers or agencies themselves or whether or not you think the courts will be too reluctant to enforce them or if there's a way to keep the agencies from constantly moving the ball and making those sanctions really stick. >> what i talked about was a vision of what we all could do, the public, if we set our minds to it that doesn't require a change in the law and doesn't require the courts.

after 40 years, i guess i don't want to bank that is going to be a solution. what is it that we can do and remain optimistic that this law are really important? it's important, obviously. we don't want it to be a dead letter. we talked to so many people that are frustrated by the process. they just give up. what can you do to build something? and i really believe transparency. transparency. that is the magic word. we have seen it in other areas. look at the -- following the money trail. it is possible, and social media these days to really open up the possibility of communication and connecting people that don't know -- you know, they are isolated out in america someplace. they don't have anybody to talk to. they can find out who is active and what's going on and suddenly have a connection there. they can upload their story.

they can tell it. doesn't require anybody's permission to do that. and i really think that, you know -- there are lots of foia officers. this is a movement towards professionalism there. i have known a lot of really good ones, you know, both head of the agency, and, you know, working in the ranks, you know, fielding mine, and they're honest to me. they say this is -- i don't even get to look at the document. you know? chief counsel's office tells me what to write. you appeal it. you know. there's not a -- and they're very upset about that. but you know, they have to work within the confines. but the head of the foia office, if that head of the office wants to do it, real huge professional cost to do it, say i'm not going to sign off on the letter and persist and ask questions,

right, because not all -- a lot of requests are really pretty routine, you know. so the volume of -- you know, so you can sort of attack them as how do we handle this routine matter. then there are a smaller number that are really sort of the inner secrets of the agency from a policy perspective. it's possible. i have seen it done. i have also seen foia officers that lost their job in the -- their life is made so miserable that they take early retirement or they're shovelled off to some other position. well, what's the countermand? when we got the irs manuals, it was really interesting because they had guidance to how severe penalty you should do for misbehavior within the irs. and it was very clear that the dividing line between low serious/high serious was did the public find out about it. okay. i mean, explicit. i mean, that's realistic because

-- so the counter -- you get in trouble when you release something and your boss is unhappy with the press. okay. there's no countermand here. wow. maybe you'll get in trouble. because it's really secret. it's very, very rare that that, you know, gets any traction and anybody knows about it, unless it's just a really high profile issue and people are very e fk twif the media and it's just so exceptional. why don't we make this a more general threat? and then foia officer that wants to obey can say, well, do you want to see that on "the new york times" tomorrow morning, right? it might change the balance. did i -- >> so given that, sue, everything that you have just said and given your experience, do you come down in favor or against sanctions against individual foia officers as opposed to sanctions of a more institutional nature?

>> well, i personally think that you do need to hold people accountable. i certainly wouldn't hold necessarily the people that are low level, but the foia officer who is signing that letter -- because it comes out in the foia's officer name -- i think you should hold that person responsible. but, you see, my way of holding them responsible is public exposure that will also give them more leverage, should they want. because, you know, i hear the stories, you know? so they can say, you know, they really want it known that, you know, you are doing x, y, z. how do i really justify this? they will have as a result more leverage. i also think you should hold the agency responsible, but -- >> that goes back to your earlier point that just as sunlight is the best of

disinfectants, shame may be the best of deterrents? >> right. more information out there systematic so you really know what's going on. because i think foia requesters would be more effective if they really saw the whole terrain. they can see what had happened. it could be more effective in their own. there would be some best practices that they could be see. they could have a sense about what is possible and what is correct. >> best practices for foia requesters? >> how does agency respond, how do we as a requester get the information, right? >> yes. >> yeah. >> and so you know what to expect and, you know, that being forewarned is sometimes very helpful. >> gentleman on this side of the audience looks semiforewarned, at least. >> jim snyder. my question has to do with conflict of interest guidance for foia officers. there's lots of discussions about how to get foia officers to comply with the law, but it's not generally thought that they may have blatant conflicts of

interest in actually serving their role. many foia officers don't just do foia. they're lawyers for an agency and have many other roles. for example, i have been researching a particular agency and the foia officer also does all the vetting for the federal advisory committee. this agency it happens to be i'm interested in investigating how that agency does the vetting process for the federal advisory committees. now, there's no public disclosure that the person i'm asking is actually -- i'm actually checking on the foia officer, as it turns out. i didn't know that early on, and they don't disclose it. well, this is not an isolated phenomenon. a lot of these foia officers have these blatant conflicts of interest. should they disclose they're actually the -- not only the vehicle for fulfilling it, they are the person who is the subject of the foia request?

should this be disclosed? and we have so many other conflict-of-interest guidelines that we try to have check an balances. is this an acceptable way to conduct foia in the federal government? >> to have conflict-of-interest guidance -- >> foia officer -- >> has to. >> has a conflict of interest. instead of having a separate neutral person being a foia officer, which is how they present themselves. you go to the asap meet, they present themselves concerned about the truth, and then you find out they have a dog in the fight and it's not being disclosed. we would not accept that in a legislator or a judge and i county counselor, never accept that and really i don't think should be permissible to begin with. >> you know, i haven't considered that, but i'm for openness.

the mechanism of, you know, it certainly would be very useful to know that and have a mechanism for doing that. but i haven't really thought in depth about that. >> i can tell you from my own experience that there certainly ought to be a mechanism in all instances, in all agencies, whereby someone who has an individual personal interest in the matter should not be handling that matter and should -- for example, i can recall having to recuse myself in foia matters in at least a few cases over the years for one reason or another. that should be the norm. >> more strictly, i'm saying they should just disclose. >> i'd go even further. i would say if a foia officer has an individual personal interest in any aspect of the handling of that foia request or any other matter in the agency, that person should step aside and allow someone else who has no such interest handle it. >> but how are you going to do that for requests as to how the foia office operates, which is what i'm advocating here?

right? >> well, if the request is for records, records that reflect that should be processed. i can tell you one instance that the justice department where because the request had to do with the activity of the foia office, which is what you're positing, that request was adjudicated in a special way by a separate component. there is at least or was at least a mechanism with the department of justice. >> you have more sort of structure there in the department of justice. but lots of these agencies, a small agency and the practicality of it. and you disable everybody that touches foia, well, who's left? >> well, there's a legal principle that applies there, and it comes up every now and again when a group of federal judges sue for salary increase. and the principle is if everyone is recused, then nobody is.