release March 15, 2005
more information contact:
Meredith Fuchs - 202/994-7000
General Counsel Testifies Before Congressional Hearing on "Openness
in Government and Freedom of Information:
Examining the OPEN Government Act of 2005"
by Meredith Fuchs, General Counsel,
National Security Archive, George Washington University
March 15, 2005
on "Openness in Government and Freedom of Information:
Examining the OPEN Government Act of 2005"
226 of the Dirksen Senate Office Building
Senate Committee on the Judiciary Subcommittee on
Terrorism, Technology and Homeland Security
here to download this statement as a single PDF file
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 co-sponsors
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.
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 defense.
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
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 attacks.
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.
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 requests.
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 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
Independent Review Will Reduce Litigation And Improve The Quality
of Disclosure Decisions
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 laws.
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.
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