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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