Tuesday, May 19, 2015

Tom Blanton Testifies on State of Open Government


Statement of Thomas Blanton
Director, National Security Archive, George Washington University

Before the United States Senate Committee on the Judiciary Hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government”

Dirksen Senate Office Building, Room 226, Washington D.C. Wednesday, May 6, 2015

Mr. Chairman, distinguished members of the Committee: thank you very much for your invitation to testify today about open government and the Freedom of Information Act. My name is Tom Blanton and I am the director of the independent non-governmental National Security Archive, based at the George Washington University.

At the Archive, we are veterans of more than 50,000 Freedom of Information requests that have changed the way history is written and even how policy is decided. Our White House e-mail lawsuits against every President from Reagan to Obama saved hundreds of millions of messages, and set a standard for digital preservation that the rest of the government has never yet achieved, as we know from the State Department. The Archive has won prizes and recognition ranging from the James Madison Award that Senator Cornyn deservedly received this year from the American Library Association – joining Senator Leahy in excellent company – to the Emmy Award for news and documentary research, to the George Polk Award for “piercing self-serving veils of government secrecy.”

This year we completed our 14th government-wide audit of agency FOIA performance, with more recommendations like the ones this Committee included in the landmark Cornyn-Leahy amendments in 2007 and again last year with the excellent FOIA reform bill this Committee passed unanimously through the Senate. My statement today addresses each of these areas of open government performance, and the lack thereof.

But first, I want to say that it is an honor to be here today on this panel with the general counsel of the Associated Press. Not only was the AP one of the founders of the now-ten-year-old Sunshine Week, the AP consistently ranks among the most systematic and effective users of the Freedom of Information Act. I am especially grateful to the AP for taking on the number-crunching task of making sense of agency annual reports on FOIA, and providing a common-sense analysis that parts ways significantly from the official spin. The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA. But the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.

The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.

In the National Security Archive’s experience, most agency claims of “no records” are actually an agency error, deliberate or inadvertent. I say deliberate because the FBI, for example, for years kept a single index to search when a FOIA request came in, even though that index listed only a fraction of the FBI’s records. But the FBI could say with a straight face, we conducted a full search of our central index, and found no records, and the requesters would go away. Only when we called them on their abysmally high rate (65%!) of no-records responses (most agencies were averaging closer to 10%), did the FBI change their process.

I say inadvertent because FOIA officers may not know where the documents are, and most often the requester doesn’t either. This is why dialogue between the agency and the requester is vital, why a negotiating process where the agency explains its records and the requester in return narrows her request, makes the most sense. This is why the Office of Government Information Services is so important, to mediate that dialogue, to bring institutional memory to bear, and to report independently to Congress about what is going on. This is why the original Freedom of Information Act back in 1966 started with the requirement that agencies publish their rules, their manuals, their organization descriptions, their policies, and their released records for inspection and copying. This kind of pro-active disclosure is essential, and our most recent audit showed “most agencies are falling short on mandate for online records.”

I’ll come back to that point, but let me first give you some of the big picture, since you are examining this administration’s overall performance on open government. The tenth anniversary of Sunshine Week this spring prompted some tough questions: are we doing better than when we started that Week 10 years ago, or worse, or holding our own? As with so many multiple-choice questions, the answer is probably “all of the above,” but I would also argue, mostly better – partly cloudy. My daddy of course once shoveled four inches of partly cloudy off the front steps, so we have a ways to go.

I would say for starters that many of the battles are very different today. For instance, our E-FOIA Audit of 2007, looking at the ten years of implementation after Congress passed the E-FOIA in 1996, found that only one of five federal agencies obeyed the law, posting online the required guidance, indexes, filing instructions, and contact information. Our agency-by-agency audit found that the FOIA phone listed on the Web site for one Air Force component rang in the maternity ward on a base hospital!

Now I would say almost all agencies have checked those boxes of the online basic information and the public liaison, not least because this Committee took the initiative with the 2007 FOIA amendments to put into the law the requirements for designated Chief FOIA Officers and FOIA public contacts, as well as reporting requirements, the ombuds office, and other progressive provisions.

The biggest shortcoming today, besides the endemic delays in response and the growing backlogs that the AP has so starkly reported, is that so few federal agencies (67 out of over 165 covered by our latest FOIA Audit) do the routine online posting of released FOIA documents that E-FOIA intended. We released these results for Sunshine Week this year, and I recommend for your browsing the wonderful color-coded chart we published rating the agencies from green to yellow to red, with direct links to each of the online reading rooms, or the site where they should be but aren’t. This was a terrific investigative project by the Archive’s FOIA project director Nate Jones and associate director Lauren Harper. The headline from their work is, nearly 20 years after Congress passed the E-FOIA, only 40% of agencies obey the intent of the law, which was to use the new technologies to put FOIA documents online, and reduce the processing burden on the agencies and on the public.

The fact of endemic delays and growing backlogs makes proactive disclosure even more important. As I’ve argued before, the zero-sum setting of FOIA processing in a real world of limited government budgets means that any new request we file actually slows down the next request anybody else files. Not to mention our own older requests slowing down our new ones, especially if they apply to multiple records systems. The only way out of this resource trap is to ensure that agencies post online whatever they are releasing, with few exceptions for personal privacy requests and the like. When taxpayers are spending money to process FOIA requests, the results should become public, and since agencies rarely count how often a record may be requested, requirements like “must be requested three times or more” just do not make sense.

There should be a presumption of online posting for released records, with narrow exceptions. I have found in many of the classes I teach that if sources are not online, for this younger generation, they simply do not exist. Many examples of agency leadership – posting online the Challenger space shuttle disaster records or the Deep Water Horizon investigation documents, for example – have proven that doing so both reduces the FOIA burden and dramatically informs the public.

Our audit this year found 17 out of 165 agencies that are real E-Stars, which disproves all the agency complaints how it’s just not possible to put their released records online. You can see the detailed listing of agencies in the charts, and there’s no difference in terms of funding or resources or FTEs or any other excuse between the E-Stars and the E-Delinquents – the difference is leadership. And oversight. And outside pressure. And internal will.

The complaint we hear the most against online posting is about the disabilities laws, that making records “508-compliant” is too burdensome and costs too much for agencies actually to populate those mandated online reading rooms. In fact, all government records created nowadays are already 508-compliant, and widely-available tools like Adobe Acrobat automatically handle the task for older records with a few clicks. The E-Stars dealt with the problem easily. Complaining about 508-compliance is an excuse, not a real barrier.

Since the State Department comes in for so much deserved grief on FOIA and records management, I need to point out that here, State’s performance on online posting is one of the very best. As an E-Star, State’s online reading room is robust, easily searchable, and uploaded quarterly with released documents – which allows requesters a useful window of time with a deadline to publish their scoops before everybody gets to see the product. State accomplished this excellent online performance using current dollars, no new appropriations. State’s FOIA personnel deserve our congratulations for this achievement. When Secretary Clinton’s e-mails finally get through the department’s review (which should not take long, since none are classified), State’s online reading room will provide a real public service for reading those e-mails.

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