March 15, 2005
Mr. Chairman and members of the Committee, thank you for this opportunity to speak with you about the Freedom of Information Act and the necessary reforms that would be enacted by the OPEN Government Act of 2005. I wish to commend the cosponsors of the OPEN Government Act of 2005, Senators Cornyn and Leahy - each of whom has an established record as a defender of open government - for their efforts to ensure that our federal government is accountable and responsive to its citizens.
I have extensive experience with the Freedom of Information Act. The National
Security Archive, of which I am General Counsel, ranks as one of the most active and
successful non-profit users of the Freedom of Information Act: Our work has resulted in
more than six million pages of released documents that might otherwise be secret today.
We have published more than half a million pages on the Web and other formats, along
with more than 40 books by our staff and fellows, including the Pulitzer Prize winner in
1996 on Eastern Europe after Communism. We have conducted two recent studies of
federal agency administration of the FOIA, including one that focused entirely on the
problem of delay and backlog. We won the George Polk Award in April 2000 for
"piercing self-serving veils of government secrecy." We have partners in 35 countries
around the world doing the same kind of work today, opening the files of secret police,
Politburos, military dictatorships, and the Warsaw Pact. We use the United States' model
of a transparent democracy to advocate for openness abroad.
1. An Informed Citizenry Builds A Stronger Nation
An informed citizenry is one of our nation's highest ideals. Thus, much of our
public policy is predicated on the idea that competition in the marketplace for ideas
should be fair and unfettered. To this end, we support a free press, a diverse scholarly
community, and an inquiring citizenry - all dedicated to ferreting out and publishing
facts. The Freedom of Information Act is a critical component in this effort to permit
public access to facts - facts about government. In a world in which war and terrorism
are commonplace, an essential component of national security is an informed citizenry
that, as a result of its education about issues, believes in and strongly supports its
government. This is glaringly apparent at a time when American soldiers are being
called on to risk their lives to protect democratic ideals, when the public is held in a
balance of terror, and when our resources are committed to establishing and maintaining
Our freedom of information laws are the best mechanism for empowering the
public to participate in governance. An open government is an honest government that
will engender the loyalty and support of its citizens. The fact of the matter is, however,
that there is a bureaucratic resistance - to some extent justified - to opening government
proceedings and filing cabinets to public scrutiny. National security is a very real and
important concern that unfortunately leads to a certain level of reflexive secrecy. But,
often the secrecy reflex should have given way to the right to know and, indeed, the need
to know. Thus, the law must impose pressure to disclose information on government
agencies, including a real opportunity for independent disclosure decisions, exposure of
recalcitrant or unacceptable handling of information requests, and penalties for disregard
of the public's legal right to information about the activities of the government
Just last summer, Congressman Shays of Connecticut gave a striking example of
the paradox caused by the secrecy system running up against the public interest in
disclosure. He described an incident in 1991 when a Department of Defense inspector
general classified a study that found that 40 percent of chemical masks for the military
leaked. It was classified, so, according to Congressman Shays, no one was doing
anything to solve the problem. Congressman Shays described how he was gagged from
speaking about it for six years when it finally was disclosed and his constituents -
American soldiers who fought in the Gulf War - were able to begin to understand their
Gulf War illnesses. The rest is history, so to speak. Isn't it important for the security of
the nation and for the safety of the public for these kinds of problems to be confronted
instead of being locked away in secret vaults?
Indeed, this is the lesson of the inquiries concerning the September 11 attacks on
the United States. It was most directly addressed by Eleanor Hill, Staff Director, Joint
House/Senate Intelligence Committee Investigation into September 11 Attacks. In the
"Joint Inquiry Staff Statement" of October 17, 2002, Ms. Hill explained,
"the record suggests that, prior to September 11th, the U.S. intelligence and law
enforcement communities were fighting a war against terrorism largely without the
benefit of what some would call their most potent weapon in that effort: an alert and
committed American public. One needs look no further for proof of the latter point than
the heroics of the passengers on Flight 93 or the quick action of the flight attendant who
identified shoe bomber Richard Reid."
This conclusion is echoed in the Report of the 9/11 Commission, which includes
only one finding that the attacks might have been prevented. This occurs on page 247 and
is repeated on page 276 with the footnote on page 541, quoting the interrogation of the
hijackers' paymaster, Ramzi Binalshibh. Binalshibh commented that if the organizers,
particularly Khalid Sheikh Mohammed, had known that the so-called 20th hijacker,
Zacarias Moussaoui, had been arrested at his Minnesota flight school on immigration
charges, then Bin Ladin and Mohammed would have called off the 9/11 attacks. News of
that arrest would have alerted the FBI agent in Phoenix who warned of Islamic militants
in flight schools in a July 2001 memo that vanished into the FBI's vaults in Washington.
The Commission's wording is important here: only "publicity" could have derailed the
We see in examples again and again that an informed public is an empowered
public that can protect the health, safety and security of their own communities.
Documents disclosed under FOIA have repeatedly been used to expose potential conflicts
of interest that directly relate to public welfare, such as National Institute of Health
researchers who had close ties to the pharmaceutical industry. The result of disclosure:
review and reform of NIH's ethical rules. As you can see from the list of news stories
published in the last few years that I have appended to my testimony, there are numerous
examples of information being released in documents requested under FOIA that has
empowered citizens to protect their families and communities from risks like lead in the
water, mercury in fish, crime hubs, and the like. I remember when a foreign official
visited my office on the eve of his own country implementing a freedom of information
law and asked, "What if the records show that the government did something wrong?"
My answer to him - and to you - is that is what the FOIA is about and that is what the
citizens of this country deserve: a government that can acknowledge it errors, compensate
for them, and then do better the next time. That is what the black farmers who were
subjected to radiation experiments in this country are entitled to. It is what the soldiers
who were unwittingly exposed to chemical and biological agents in tests by the U.S.
military are entitled to. And, it is what will ultimately keep our nation strong.
2. Justice Delayed is Justice Denied
A key part of empowering the public, however, is giving them the information
they need in sufficient time for them to act. The problem of delay in the processing of
FOIA requests has been a persistent problem. When first enacted, the Freedom of
Information Act had nothing in it to force agencies to respond within a reasonable
timeframe. In 1974, Congress amended FOIA and established administrative deadlines
of ten working days for processing FOIA requests and twenty working days for
administrative appeals, and a one-time, ten working day extension in "unusual
circumstances." Unfortunately most FOIA requests seems to fall into the loophole for
"unusual circumstances." Congress tried again in 1996 to address the problem both by
increasing the mandatory processing time to take into account the reality of the
administrative processing burden and also by narrowing the loophole to cover only
"exceptional circumstances" and clarify that routine, predictable agency backlogs for
FOIA requests do not constitute exceptional circumstances for purposes of the Act,
unless the agency demonstrates reasonable progress in reducing its backlog of pending
My organization oversaw a 35 agency audit to determine whether agencies had
made progress in reducing backlogs. We found that as of November 2003 there still were
backlogs as long as 16 years at some agencies. I have appended to my testimony a graph
that shows the range of delays that we were able to identify.
You all know the old adage that "justice delayed is justice denied." Well, in the
case of FOIA that certainly is true. My own organization has many examples of long
delayed requests that resulted in no information being available for reasons that simply
are unacceptable. For example, we made requests to the Air Force in 1987 for records on
the visit by former Philippine President Ferdinand Marcos to US Air Bases as he was
driven into exile in 1986. When we recently refiled the request we were told that records
on the subject would have been destroyed many years ago. We made a request to the
Defense Intelligence Agency in 1993 for records concerning the heroin trade in
Colombia. A document was located and sent to the Coast Guard for review and release
in 1995. Nine years later we were told that the Coast Guard lost the document. Finally,
we have many requests that languished for 8, 9, 10 or 11 years when we finally were
informed that during the pendency of our request, the records were accessioned to the
National Archives and Records Administration. In one case, we had completed and
published two document sets on U.S.-Japanese relations while we waited. How much
worse must the problem be for journalists who are trying to uncover breaking news or
individuals who are trying to protect their families and communities or advocacy groups
who are working hard to protect the health and safety of the public? These noble efforts
should not be undermined by the failure of the FOIA system to identify and disclose
information that the public has a right and a need to know. Something has to be done.
The OPEN Government Act of 2005 will go far to motivate agencies to process
FOIA requests and to process in a timely fashion. The Act includes a provision that
would limit the ability of agencies to withhold some information in litigation if they
cannot justify their belated responses to a FOIA request. This provision, perhaps more
than any other, may be the key to solving the delay problem. Some may criticize it out of
fear that it will result in a flood of troubling information disclosures. The reality is that
despite 3.6 million FOIA requests reported in FY 2004, there were nothing approaching
that many FOIA lawsuits filed in federal court during FY 2004 and the provision only
comes into play in litigation. That requires the requester to have the resources to bring
suit. It also requires a judge to decide that the penalty meets the statutory standard of
"clear and convincing" evidence that there was good cause for failure to comply with the
time limits. Further, it applies only to the discretionary exemptions, and has no impact on
the issues that Congress has identified as most needing protection from disclosure. It
would not undermine the national security protection of Exemption 1; it would not
endanger personal privacy concerns protected by the Privacy Act of 1974; and, it would
not lead to disclosure of information that Congress has mandated should be secret, such
as intelligence sources and methods. With all these protections built into the proposal,
the bottom line is that it is unlikely to lead to any dire consequences.
On the other hand, there is little in the law as it is written today that puts real
pressure on agencies to get their FOIA systems working smoothly. I would liken the
expected impact of the proposed penalty for delay provision to the impact that automatic
declassification in Executive Order 12958 had on the declassification of historical
records. Even though automatic declassification has never been imposed on any agency
- the deadline was extended both by President Clinton and by President Bush - the threat
of it resulted in a dramatic increase in declassification activity. The fear that agencies
could lose control over their declassification decisions focused the agencies on setting up
processes for systematic declassification. The penalty provision in the OPEN
Government Act of 2005 will have just that impact. It will spur agencies to upgrade their
FOIA processing to meet the requirements of the law. If agencies comply with the law,
they will have nothing to fear.
Another provision that will put some needed pressure on agencies, especially
those that are obstructive, is the requirement that the Attorney General notify the Office
of Special Counsel of any judicial finding that agency personnel have acted arbitrarily or
capriciously with respect to withholding documents. The provision does not change the
Office of Special Counsel's existing authority to determine whether disciplinary action
against the involved personnel is warranted, but it makes clear that the Attorney General
of the United States will take action when agency personnel ignore their legal obligations.
Our audit found that the backlogs I have described cannot be detected by
Congress in the annual reports each agency is required to publish concerning their FOIA
processing. For example, if an agency told you that its median response time for FOIA
requests is 169 days, would you be surprised to learn that the same agency had
unprocessed requests as old as 3400 days? Well, that was the case with the Air Force
when we conducted our audit. What about an agency that reports its median processing
time as 55 days. Would it surprise you to know that the agency, the Department of
Commerce, had requests still pending as old as 2400 days. How can Congress engage in
oversight if the information it is provided is meaningless or misleading? How can a
FOIA requester persuade a court that an agency has not demonstrated "exceptional
circumstances" justifying delay if the requester has no data to present to the court?
The problem is not necessarily that the statistics are wrong, but simply that the
reports do not offer the information needed by Congress and the public. For instance, we
found that agencies exclude from their median processing times long periods of delay
after their receipt of FOIA requests while the request is "perfected" or fee disputes are
resolved. Agencies also frequently close requests by sending the requester a letter
inquiring whether there is any "continuing interest" in the records and then closing the
request if a response is not received within a short period. In addition, in some cases the
medians are actually the median of medians reported by each major agency component.
As a result, there is no way to compare FOIA processing across the government or to
assess the tremendous disparities between agencies' workloads, backlogs and processing
times. In fact, I feel no hesitation in saying that many of the conclusions drawn from the
annual reports are faulty. This does a disservice to Congress, the public, and the
The OPEN Government Act of 2005 would improve reporting by requiring a
fixed, standard method for calculating response times - so that reliable comparison can
be made across agencies - and statistics on the range of response times, the average and
median response times, and the oldest pending FOIA requests. It also requires agencies
to set up tracking number and FOIA hotlines that ensure that requests are logged, are not
lost, and are monitored. It imposes a discipline on agencies and empowers FOIA
requesters to engage in a back and forth with agency FOIA personnel to facility
3. Independent Review Will Reduce Litigation And Improve The Quality of
Another aspect of the OPEN Government Act of 2005 that I believe will make the
FOIA system work better for the public is the proposal to set up an Office of Government
Information Services and a FOIA ombudsman within the Administrative Conference of
the United States. So long as the ombudsman program does not impact the ability of
requestors to litigate FOIA claims, it may resolve problems and alleviate the need for
litigation. These sorts of independent ombudsmen and information commissioners are
gaining popularity in other nations with freedom of information laws as well.
There is a good example of how an independent review mechanism aside from
litigation in the courts can work in the functioning of the Interagency Security
Classification Appeals Panel (ISCAP), which has ruled for openness in some 60% of its
cases, although the total number of cases is quite small and involves mostly historical
rather than current information. ISCAP works well because it has credibility as a result
of its balanced membership and because it has binding authority unless an appeal is made
to the President of the United States.
Nonetheless, many good examples exist of ombudsmen and information
commissioners who do not have binding authority, but whose opinions carry weight.
Key provisions that would help this alternative dispute process work would be the
requirement that agencies engage in the process in good faith, authority for the
ombudsman to hold hearings or take testimony, and publication of the ombudsman's
opinions. A wonderful example of an ombudsman who lacks binding authority, but
nonetheless resolves disclosure disputes, is the Committee on Open Government in New
York State. The Committee furnishes advisory opinions, which it publishes for public
review, and submits an annual report to the Governor and the State Legislature describing
the Committee's experience and recommendations for improving the open government
The Administrative Conference historically was the type of institution that
merited the respect of other government agencies. Thus, it is an appropriate place in
which to house a FOIA ombudsman. It will have no apparent conflict of interest in
attempting to mediate and resolve disputes. It requires the funding and support necessary
to make the program work, however. I urge Congress, therefore, to provide sufficient
funding and, with the passage of the OPEN Government Act of 2005, clearly establish
the statutory intent to open the government as much as possible to public scrutiny as is
consistent with the needs of national security. With an established track record,
independence, congressional support, publicity and an expressed statutory intent to
maximize disclosure, the ombudsman proposal may improve FOIA processing for all
requesters and minimize litigation for agencies.
4. Recognizing the Goal of Having an Open Government
Finally, I wish to commend the OPEN Government Act of 2005's directive that
the Office of Personnel Management examine how FOIA can be better implemented at
the agency level, including an assessment of the benefit of performance reviews, job
classification and training related to FOIA. The people who process these FOIA requests
are serving a significant public interest and are the focal point for the competing
pressures of secrecy and disclosure. The system will work better if the incentives are
changed to make everyone in the bureaucracy comply with FOIA, so the FOIA personnel
are able to fulfill their mission.
I am grateful for your time today. I will be pleased to answer your questions.
21st Century FOIA Success Stories
"Feds Don't Track Airline Watchlist Mishaps," The Associated Press State & Local Wire,
July 24, 2003, at State and Regional, by David Kravets. Exposed problems of delay and "false
positives" caused by management of aviation security program.
"Extra IDs a Liability for Hill, 13 Other Bases," Deseret Morning News (Salt Lake City),
Aug. 21, 2003, at B1, by Lee Davidson. Disclosed security risk of unaccounted for identification
badges and contractors who did not have criminal background checks.
"Mission of Sacrifice Series: Casualties of Peace, Part One of Seven Parts," Dayton Daily
News (Ohio), Oct. 26, 2003, at A1, by Russell Carollo and Mei-Ling Hopgood.
Exposed never-before-released statistics on the dangers faced by Peace Corps volunteers.
"Documents Say 60 Nuclear Chain Reactions Possible," Las Vegas Review-Journal (Nevada),
Nov. 26, 2003, at 5B, by Keith Rogers. Nevada state officials learned of the possibility of an
uncontrolled nuclear chain reaction inside the planned Yucca Mountain nuclear waste repository.
"Stealth Merger: Drug Companies and Government Medical Research; Some of the
National Institutes of Health's Top Scientists Are Also Collecting Paychecks and Stock
Options from Biomedical Firms. Increasingly, Such Deals Are Kept Secret," The Los
Angeles Times, Dec. 7, 2003, at A1, by David Willman. Exposed potential conflicts of interest
inside national top health research institution.
"Northwest Gave U.S. Data on Passengers; Airline Had Denied Sharing Information for
Security Effort," The Washington Post, Jan. 18, 2004, at A1, by Sara Kehaulani Goo. Airlines
provided passenger data to government without informing passengers.
"Chemawa Warnings Date to '89," The Oregonian, Feb. 20, 2004, at A1, by Kim Christensen
and Kara Briggs. Documents show repeated warnings by Indian Health Service regarding
school's "holding cells," lack of supervision and poor medical service.
"D.C. Knew of Lead Problems in 2002; Timing of E-Mails Contradicts Claims," The
Washington Post, Mar. 29, 2004, at A1, by Carol D. Leonnig and David Nakamura.
"Group: Industry Exceeds Clean Water Act," Waste News, Apr. 12, 2004, by Bruce
Geiselman. EPA documents show more than 60 percent of industrial and municipal facilities
nationwide exceeded Clean Water Act permit limits during the eighteen month period.
"Rat-Poison Makers Stall Safety Rules; EPA Had Drafted Regulations to Protect Children,
Animals," The Washington Post, Apr. 15, 2004, at A3, by Juliet Eilperin. Documents expose
risk of rat poison to children.
"Navy Confirms Weapons Facility Was Temporarily Decertified," The Associated Press
State & Local Wire, Apr. 24, 2004, at State and Regional. Confirms an incident at a local Navy
submarine facility where a nuclear missile was mishandled.
"Eating well: Second Thoughts on Mercury in Fish," The New York Times, 13 March 2002,
p. F5, by Marian Burros. Risk of mercury to pregnant women and children exposed.
"Reagan, Hoover, and the UC Red Scare," San Francisco Chronicle, 9 June 2002, p. A1, by
Seth Rosenfeld. FOIA documents obtained after a 17-year legal battle showed the FBI had
conducted unlawful intelligence activities at the University of California, the nation's largest
public university, in the 1950s and 1960s.
"Sailors exposed to deadly agents," The Deseret News (Salt Lake City, Utah), 24 May 2002, p.
A1, by Lee Davidson. 7 years after FOIA documents showed the Army exposed hundreds of
sailors to germ and chemical warfare tests in the 1960s, the Pentagon acknowledged using
chemical and biological warfare agents in the tests.
"Widespread Water Violations Decried," By Eric Pianin, The Washington Post, 7 August
2002. Nearly one-third of major industrial facilities and government-operated sewage treatment
plants have significantly violated pollution discharge regulations during a two year period.
"The Vertical Vision/ Part I: The Widow-Maker," By Alan C. Miller and Kevin Sack, The
Los Angeles Times, 15 December 2002. Military documents chronicled the troubled history of
the most dangerous airplane flying in the U.S. military -- the Marine Corps' Harrier attack jet.
"Doomed plane's gaming system exposes holes in FAA oversight," By Gary Stoller, USA
Today, 17 February 2003. Documents connected the Sept. 2, 1998, crash of Swissair Flight 111
with the flight's entertainment system.
"Study details MTA woes; Buses average breakdown every 976 miles of service; Peer
agencies more reliable; Report details problems with maintenance, safety," By Stephen
Kiehl, The Baltimore Sun, 21 April 2003. Buses operated by the Maryland Transit
Administration are more prone to breakdowns than buses in comparable transit agencies.
"NASA mistakes, optimism cost taxpayers billions," Florida Today, 15 June 2001. Document
shows projected $4.3 billion cost overrun on international space station.
"Hundreds of defects reported along Zephyr's track," Associated Press, 10 June 2001. In 5
years prior to fatal Amtrak derailment March 17, 1500 defects found on Iowa tracks.
"Mishandling of informant hurt cases, DEA concedes; Crime: Because the system missed
warnings of operative's misdeeds, many charges have been dismissed or weakened," Los
Angeles Times, 5 June 2001. DEA and prosecutors ignored warnings for 12 years, 280 cases.
"Ritalin prescribed unevenly in U.S.," Cleveland Plain Dealer, 6 May 2001. DEA data shows
dramatic variations by county in prescription rates for drug.
THE TEN OLDEST FOIA REQUESTS:
BACKLOGS STILL EXIST
(As of November 2003)
Annual Reports Mask the Seriousness of the Backlog:
Comparison of Median Processing Times to Age of Ten
Oldest Pending FOIA Requests
(As of November 2003)
? AGENCY FOR INTERNATIONAL DEVELOPMENT (Ten Oldest FOIA
Requests pending as long as 1500 to 1250 business days; Median Days To
Process requests pending at end of FY 2002 reported as 356);
? AIR FORCE (Ten Oldest FOIA Requests pending approximately 3400 to 2300
business days; Median Days To Process requests pending at end of FY 2002
reported as 169);
? ARMY (Ten Oldest FOIA Requests pending as long as 3500 business days;
Median Days To Process requests pending at end of FY 2002 reported as 25);
? CENTRAL INTELLIGENCE AGENCY (Ten Oldest FOIA Requests pending
as long as 4090 to 3400 business days; Median Days To Process requests pending
at end of FY 2002 reported as 601);
? DEFENSE INTELLIGENCE AGENCY (Ten Oldest FOIA Requests pending
approximately 3000 to 1300 business days; Median Days To Process requests
pending at end of FY 2002 reported as 890);
? DEPARTMENT OF COMMERCE (Ten Oldest FOIA Requests pending
approximately 2400 to 650 business days; Median Days To Process request
pending at the end of FY 2002 reported as 55);
? DEPARTMENT OF DEFENSE (Ten Oldest FOIA Requests pending
approximately 4170 to 2700 business days; Median Days To Process requests
pending at end of FY 2002 reported as 87);
? DEPARTMENT OF ENERGY (Ten Oldest FOIA Requests pending
approximately 3100 to 1790 business days; Median Days To Process request
pending at the end of FY 2002 reported as 97);
? DEPARTMENT OF JUSTICE, OFFICE OF INFORMATION AND
PRIVACY (Ten Oldest FOIA Requests pending approximately 2250 to 900
business days; Median Days To Process request pending at the end of FY 2002
reported as 2-295);
? DEPARTMENT OF TREASURY (Ten Oldest FOIA Requests pending
approximately 2130-2010 business days; Median Days To Process request
pending at the end of FY 2002 reported as 1-545)
? ENVIRONMENTAL PROTECTION AGENCY (Ten Oldest FOIA Requests
pending approximately 2250 to 1500 business days; Median Days To Process
request pending at the end of FY 2002 reported as 11-483);
? FEDERAL BUREAU OF INVESTIGATION (Ten Oldest FOIA Requests
pending approximately 3970 to 830 business days; Median Days To Process
requests pending at end of FY 2002 reported as 90);
? NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (Ten Oldest
FOIA Requests pending approximately 3390 to 2540 business days; Median Days
To Process request pending at the end of FY 2002 reported as 887).